Claim No. CFI 057/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

CLYDE & CO LLP

Claimant

and

(1) UNION PROPERTIES P.J.S.C.
(2) UPP CAPITAL INVESTMENT LLC

Defendants

ORDER WITH REASONS OF H.E. CHIEF JUSTICE WAYNE MARTIN

UPON the Claimant’s Claim Form and Particulars of Claim dated 10 June 2025 (the “Claim”)

AND UPON the Order with Reasons of H.E. Justice Roger Stewart KC dated 9 December 2025 (the “Order”)

AND UPON the Defendants’ Appeal Notice dated 31 December 2025 (the “Permission to Appeal Application”) seeking permission to appeal the Order

AND UPON the Order with Reasons of H.E. Justice Roger Stewart KC dated 2 February 2026 refusing the Permission to Appeal Application (the “2 February Order”)

AND UPON the Defendants’ Appeal Notice dated 24 February 2026 (the “Renewed Application”) seeking renewed permission to appeal the Order

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

IT IS HEREBY ORDERED THAT:

1. The Renewed Application is granted.

2. The costs of the Renewed Application are reserved to the Court of Appeal.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 13 March 2026
At: 1pm

Summary

1. The Defendants, Union Properties S.J.P.C. and UPP Investments LLC (together the “Clients”) apply to the Court of Appeal for permission to appeal from the decision of the Judge at first instance (the “Judge”) in which he granted a declaration in favour of the Claimant (“Clyde”) to the effect that upon the termination of the retainer agreement between the Clients and Clyde, Clyde was entitled to charge the Clients for work which had been performed but not previously billed because of provisions in the retainer agreement capping the amount of bills which could be rendered each month (the “Renewed Application”). The Renewed Application is made to the Court of Appeal because the Judge refused an application for permission to appeal.

2. For the reasons which follow, the Clients have established that their proposed grounds of appeal have a real prospect of success and permission to appeal should be granted.

The context of the dispute

3. The following synopsis of the facts giving rise to the dispute is taken from the decision at first instance for the purposes of providing context for the assessment of the grounds of appeal. Accordingly, what follows should not be taken as findings of fact binding upon the Court of Appeal (or anybody for that matter).

4. Clyde was first approached by the Clients in about December 2021 in connection with a substantial fraud which had been perpetrated upon them. Clyde was initially retained under a letter of engagement dated 27 December 2021. The scope of work under that retainer was limited and involved the provision of advice with respect to a litigation strategy. After that advice was provided, the Clients agreed to retain Clyde to act on their behalf in proceedings which were to be commenced in the Courts of the Abu Dhabi Global Markets against various parties.

5. The terms of the retainer agreement relating to the conduct of the litigation were set out in a letter from Clyde dated 5 April 2022 (the “Letter”) which incorporated printed terms and conditions (the “Terms of Business”) (together the “Retainer Agreement”). The relevant terms of the Retainer Agreement will be set out below including the terms which imposed a cap on monthly fees of an average of USD 45,000/month. As will be seen, the critical question is whether, on the proper construction of the Retainer Agreement, that is a cap on fees which can be charged or a cap on fees which can be billed, with the result that the Clients incur a liability for work done but not billed because of the monthly cap, which liability crystallises and arises for payment upon the termination of the Retainer Agreement.

6. Although the full billing history has not been provided to the Court, disputes arose in relation to the practical application of the requirement that average monthly fees were not to exceed USD 45,000/month and as to the scope of the work which was included within that cap. Further, because the work done in earlier periods would have resulted in charges exceeding the monthly cap if that work had been billed at the time, by March 2024 Clyde was providing invoices which included work done in 2022 and 2023.

7. By the end of 2024, there was considerable tension between Clyde and the Clients, including tension with respect to the charges that were being rendered. On 9 January 2025, the Clients terminated the Retainer Agreement which resulted in Clyde issuing an invoice for all previously unbilled work. In March 2025, the Clients paid an amount which was said to represent the balancing figure to ensure that USD 45,000/month was paid for the entire period of the retainer from April 2022 until January 2025.

8. However, Clyde asserts that the amount of USD 45,000/month was only a cap on the amount that could be billed each month during the course of the Retainer Agreement and that at the termination of the Retainer Agreement, it was entitled to charge for all work done but not previously billed because of the monthly cap. There are other issues between the parties, but those issues are not relevant to the proposed appeal.

The Letter

9. The Letter is dated 5 April 2022 and incorporates by reference a printed document entitled “Terms of Business”.

10. Clause 2.1 of the Letter describes the scope of work to be undertaken pursuant to the Retainer, which is to “commence and pursue legal proceedings in the ADGM Courts against” various parties.

11. Clause 3 identifies the Clients and clause 4 identifies the personnel within Clyde who would be primarily responsible for undertaking the work under the Retainer.

12. Clause 5 is concerned with the charges to be levied under the Retainer. As its terms are critical to the issues to be raised in the proposed appeal, some of its provisions will be set out in full.

13. Clause 5.1 provides

14. Clause 5.2 is concerned with recovery of disbursements and VAT.

15. Clause 5.3 provides:

“If we do not complete the scope of work for any reason, we will charge you for the work we have done and the disbursements and expenses that we have incurred on your behalf up to the time work ceases. Clauses 5 and 6 of our Terms of Business contain further information about our charges.”

16. Clause 5.4 sets out a table of indicative rates for other legal professionals who might be involved in the performance of work under the Retainer.

17. Clauses 5.5-5.8 provide:

18. Clause 5.12 provides that if the Clients ask Clyde to do any additional work beyond the scope of the Retainer, that work would be charged at the hourly rates specified.

19. Clause 6 provides that interim bills would be delivered by Clyde on a monthly basis unless activity on the matter justified billing at more or less frequent intervals.

20. Clause 15 refers to the Terms of Business accompanying the Retainer Agreement and provides that in the event of a conflict between those terms and the terms of the letter containing the Retainer Agreement, the letter would prevail.

The Terms of Business

21. Clause 9.2 of the Terms of Business provides:

“9.2 Unless otherwise agreed in writing, we have the right to render interim bills at monthly intervals or other periodic intervals which we regard as appropriate in the circumstances of any particular matter. Such bills are final accounts for the periods covered by them (unless otherwise stated), save that disbursements may be billed separately and later than the bill for our fees in respect of a particular period.”

22. Clause 15 of the Terms of Business deals with the circumstances in which Clyde’s engagement may be terminated by either Clyde or the Clients. Clause 15.4 provides:

“15.4 On termination of our engagement, we will submit a bill to you for work done and disbursements incurred in respect of the period up to the date of termination, and necessarily incurred afterwards as part of the orderly termination of our engagement. This final bill, taken together with any previous bills for the same matter, will set out the details of the work we have undertaken for you until the date of termination.”

The Judge’s reasons

23. After referring to the facts established by the evidence, the legal principles relating to the grant of immediate judgment and the principles of English Law relating to contractual construction, the Judge summarised the competing contentions of the parties in relation to the operation of the provisions of the Retainer Agreement which have been set out above.

24. The Judge noted that Clyde submitted that the Retainer Agreement did not provide any limit on the amount of fees that could be incurred in a month or limit the total of chargeable fees to USD 45,000 x the number of months for which the engagement lasted and that upon termination of the Retainer each of clause 5.3 of the Letter and clause 15.4 of the Terms of Business entitled Clyde to charge for work done which had not previously been billed because of the monthly cap.

25. The Judge further noted that the Clients submitted that the Letter expressly provided that monthly legal fees would never exceed more than USD 45,000 (on average) and that clause 5.7 was an illustration of that construction of the agreement. The Clients further contended that there was no provision entitling the charging of fees not previously charged on termination, by contrast to the express provisions relating to the deferred payment of 35% of each invoice.

26. The Judge’s reasons with respect to the issue in contention are admirably brief and are set out in full below:

Permission to appeal – legal principles

27. RDC 44.117 provides:

28. RDC 44.5 requires that an appellant obtain permission to appeal to the Court of Appeal except where the appeal is against a committal order.

29. RDC 44.19 provides:

30. RDC 44.19 provides that permission to appeal may only be given where the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

31. In the context of an assessment of the prospects of success “real” means realistic rather than fanciful and involves the same test as is applied in applications for immediate judgment.¹

32. A real prospect of success does not mean a probability of success, but more than mere arguability.²

33. “Some other compelling reason why the appeal should be heard” may include the public interest in clarifying the meaning and scope of relevant practice and provisions of DIFC and wider UAE law.³

34. It is established that “real” in the context of an assessment of the prospects of success means realistic rather than fanciful, applying the same test as is applied in an application for immediate judgment.⁴

35. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.⁵

36. Accordingly, in order to obtain the grant of permission a prospective appellant needs to establish more than the proposition that the proposed appeal is reasonably arguable – rather, it must be established that there is a real prospect of success.⁶

37. Particular principles apply to applications for permission to appeal against case management decisions and multi factorial assessments undertaken by a Judge at first instance, given the hurdles which must be overcome to obtain appellate intervention in such cases. However, as this case does not involve either an application to appeal against a procedural or case management decision, or against a multi factorial assessment by the trial Judge, it is unnecessary to essay the relevant principles in these reasons.

38. When a renewed application made to the Court of Appeal is refused, it is appropriate for the Court to provide reasons which adequately explain the reasons why permission has been refused. The adequacy and extent of those reasons will be informed by the fact that the refusal of permission is final and conclusive and determines the issues the subject of the appeal.

39. On the other hand, when a renewed application for permission to appeal is granted, the reasons for the grant can and should be expressed more briefly, and any views expressed should be expressed and read as provisional, on the basis that a different view might well be formed following the consideration of the fuller argument which will be presented at the hearing of the appeal. Any views expressed in these reasons should be read and construed on that basis. Further, the reasons for granting permission in respect of grounds of appeal will be expressed economically, not only because the determination of the issue raised by the ground must await the hearing of the appeal but also to limit the prospect that a party might consider that a member of the Court of Appeal does not retain an open mind in relation to any of the issues in the appeal.

The grounds of appeal

Ground 1

40. Ground 1 asserts that the Judge misconstrued clauses 5.5-5.7 of the Retainer Agreement by treating the USD 45,000 “average monthly limit (cap)” as a deferred billing mechanism rather than an enforceable fee cap. 41. The Clients submit that the Judge misconstrued clause 5.5 by reading it as a limit on bills, rather than charges, and by failing to take into account the unequivocal assertion in clause 5.6 that while Clyde’s legal fees might be less than USD 45,000/month they would never be more than that amount. The Clients further submit that the Agreement contains no clear mechanism for a balancing payment on termination converting a cap to monthly fee model into an uncapped time cost model. 42. The Clients further submit that their construction of the Agreement is supported by clause 5.7 which provides an example of how it would operate if the proceedings were concluded within the 18 months which the parties then estimated. They submit that it cannot have been the intention of the parties (objectively assessed) to the effect that clause 5.7 became a “cliff edge” so that if the proceedings were concluded within 18 months, fees were capped at USD 45,000/month, but if the proceedings went one day longer, the fees could be much greater because of the entitlement to charge for work not previously billed. 43. Clyde submits that clause 5.6, properly construed, refers only to the bills rendered monthly, not fees, by contrast to clause 5.7 which sets a cap on total legal fees if a temporal condition is met. They further adopt the Judge’s observation that clause 5.7 would be superfluous if the Clients’ submissions are accepted. 44. Clyde generally reiterates the propositions accepted by the Judge in his reasons.

Analysis

45. It is clear that the Judge has drawn a distinction between the amount which might be billed by Clyde each month, and the amount of fees which Clyde will ultimately be entitled to charge in respect of work done in that month. His first reason for doing so derives from the table in clause 5.5. The Judge observes, correctly, that it is clear from the table that, apparently notwithstanding the provisions of clause 9.2 of the Terms of Business, work done in a particular month can be billed in a later month if that work would, if billed in the month in which it was done, exceed the monthly cap, provided that it doesn’t result in the cap being exceeded in the later month. However, arguably the table says nothing about what is to occur on termination of the engagement. That is because the example illustrated in the table involves four months in which total hours worked did not result in fees exceeding the maximum amount for that period of USD 45,000/month – that is, USD180,000.

46. In other words, arguably the table, of itself, cannot sustain the proposition that an average monthly limit of USD 45,000 for each month of the Retainer becomes something different upon termination of the Retainer. Arguably, the table illustrates that the fees cannot exceed an average of USD 45,000/month over the total period of the Retainer.

47. The second matter relied upon by the Judge is that clause 5.7 is in different terms to clause 5.5 and refers to “total aggregate legal fees”. However, the terminology corresponds to the terminology used in clause 5.6, which states that Clyde’s monthly legal fees would never be more than USD 45,000/month.

48. The third matter relied upon by the Judge was the observation that clause 5.7 would be superfluous if there was a general limit of USD 45,000/month. The contrary argument, advanced by the Clients, is that clause 5.7 is simply an illustration of how the Agreement operates, and is entirely consistent with clause 5.5.

49. The fourth matter relied upon by the Judge is the reference to cashflow in clause 5.6, which he construed to suggest a deferred billing arrangement. The contrary argument is that an average monthly cap on the amount to be charged would also have a beneficial effect upon the Clients’ cash flow.

50. It is also arguable that the Judge’s reasons do not give proper weight to the clear and unequivocal assertion in clause 5.6 that Clyde’s fees would never be more than USD 45,000/month (on average). “Never” is obviously a word of absolute effect, not admitting of qualification. It is also arguably significant that the reference in clause 5.6 is to Clyde’s fees, not its bills. It is arguable that if Clyde wished to draw a distinction between its fees and its bills it was obliged to use clearer language in the Retainer Agreement.

51. The further difficulty with Clyde’s construction of the Retainer relates to the provisions pertaining to termination, which are the subject of ground 2 and will be considered in this context.

52. It is sufficient to conclude the analysis of ground 1 with the observation that the matters raised by the Clients are sufficiently arguable to have a real prospect of success.

Ground 2

53. Ground 2 contends that the Judge erred by implying a contractual entitlement, upon termination, to invoice for previously unbilled time charges in excess of the agreed cap, contrary to the express language and structure of the Retainer Agreement.

54. In support of this ground, the Clients contend that the Judge’s view is inconsistent with the express terms of the Agreement because he concluded that in effect, termination altered the basis of the Agreement by enabling Clyde to charge an amount greater than the agreed monthly cap. They submit that neither clause 5.3 of the letter agreement nor clause 15.4 of the Terms of Business entitle Clyde to render fees on some basis other than the agreed basis merely because the Retainer has been terminated.

55. Clyde submits that the Clients’ reference to an implied term is incorrect, in that the Judge grounded the obligation to pay for all work done in clause 5.3 of the letter agreement. Clyde also relies upon clause 15.4 of the Terms of Business.

Analysis

56. Clause 5.3 is enlivened if Clyde fails to complete the scope of work for any reason and would therefore apply to termination of the Retainer by Clyde in the circumstances specified in the Terms of Business which enable that to occur. It is arguable that if it was the intention of the parties (objectively construed) that in the event of termination (for whatever reason) the limit on charges provided in the subsequent provisions of the letter agreement would no longer apply, it was incumbent upon Clyde to utilise words which conveyed that meaning. It is arguable that without such words, the unexceptional language used in clause 5.3 should not be construed as having that effect.

57. A similar observation applies to clause 15.4 of the Terms of Business. It provides, in unexceptional terms, that in the event of termination of the Retainer, Clyde can bill for work done up that point. It says nothing of any other constraint upon the amount which might be charged by Clyde, such the constraints found in clauses 5.5-5.7 of the Letter, which by its terms override any provision in the Terms of Business in the event of conflict.

58. Put another way, it is arguable that clause 5.3 of the letter agreement and clause 15.4 of the Terms of Business do no more than expressly authorise Clyde to charge for work done up to the date of termination of the Retainer but on the same terms and conditions as the Retainer, including the term that Clyde’s “fees” would never be more than USD 45,000/month.

59. It is sufficient to conclude consideration of this ground with the observation the Clients’ submissions in support of the ground are sufficiently cogent to have real prospects of success.

Ground 3

60. Ground 3 contends that the Judge failed to apply the construction principle of contra proferentem.

61. The Clients contend that the Retainer Agreement is sufficiently ambiguous as to give rise to the operation of the contra proferentem principle. Clyde submits that modern jurisprudence regards the principle as one of limited and questionable utility and that it has no application where issues of construction can be resolved by the application of ordinary principle. Clyde further submits that there is no room for the operation of the principle where there was a negotiated agreement.

62. This ground of appeal is not as strong as either of the first two grounds. However, the contra proferentem principle is broad enough to encompass consideration of the fact that Clyde were the Clients’ lawyers and were arguably under a duty to ensure that the terms of the Retainer Agreement were clear and well understood in a circumstance in which there is no evidence that the Clients were obtaining independent legal advice in relation to the terms of the Agreement. The ground will add little to the ambit of the argument on appeal, and as permission to appeal is to be granted, should be included for completeness.

Conclusion

63. As the Clients have established that their proposed appeal has a real prospect of success, permission to appeal will be granted.

Costs of the Renewed Application

64. The costs of the Renewed Application for permission will be reserved to the Court of Appeal