Claim No. CFI 068/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

STEVEN IVANKOVICH

Claimant

and

(1) KJM MARINE LLC
(2) MOHAMMAD SALEH MOOSA HASSAN AJ JASMI
(3) KJI MARINA BOATS MANUFACTURING LLC

Defendants

and

(1) KJM MARINE LLC
(2) KJI MARINA BOATS MANUFACTURING LLC

Part 20 Claimants

and

(1) STEVEN IVANKOVICH
(2) NEIRAH

Part 20 Defendants

ORDER WITH REASONS OF H.E. JUSTICE SAPNA JHANGIANI

UPON the Claimant’s Application No. CFI-068-2024/2 for an anti-suit injunction dated 24 February 2025 (the “Application”)

AND UPON a hearing for the Application having been held before H.E. Justice Sapna Jhangiani on 17 March 2025

AND UPON the Order with Reasons of H.E. Justice Sapna Jhangiani dated 26 March 2025 ordering the First Defendant to pay the Claimant’s costs of the Application on an indemnity basis

AND UPON reviewing the Claimant’s submissions dated 7 April 2025 and the First Defendant’s submissions dated 22 April 2025 in relation to the Claimant’s costs of the Application

AND UPON the Court immediately assessing the Claimant’s costs of the Application

IT IS HEREBY ORDERED THAT:

1. The Claimant’s costs of the Application are immediately assessed in the sum of USD 144,684.78. The First Defendant shall pay that sum to the Claimant within 14 days.

2. Judgment interest runs on the sum of USD 144,684.78 at a rate of 9% per annum from 26 March 2025 until payment.

Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 8 May 2025
At: 9am

A. The Parties’ Submissions on Costs

Claimant

1. The Claimant submits that, pursuant to Rule 38.30(1) of the Rules of the DIFC Courts (“RDC”), the Court should immediately assess the costs of the Application (rather than order payment on account of detailed assessment). Under RDC 38.30(1), the general rule is that the Court should make an immediate assessment following any hearing that lasted less than one day. The hearing of the Application lasted less than one day, and there is no reason to depart from that general rule.

2. As to the applicable principles for indemnity costs, the Claimant submits that under RDC 38.17 and 38.19, where costs are to be ordered on an indemnity basis, costs which were unreasonably incurred or unreasonable in amount will not be recoverable. If there is any doubt as to whether an item was unreasonably incurred or is unreasonable, that doubt must be resolved in the receiving party’s favour. The burden of proof is on the First Defendant to show that any item of costs was unreasonably incurred or unreasonable in amount: DIFC Courts Practice (2024, 2nd ed.) p.803 at paragraph 38.17.1, citing Al Khorafi v Bank Sarasin. Proportionality is not a relevant consideration when assessing costs on an indemnity basis.

3. The Claimant’s revised costs schedule of 7 April 2025 excludes costs which had been erroneously included in the costs schedule submitted on 14 March 2025, prior to the hearing of the Application. The Claimant’s total costs in the revised schedule are USD 165,864.78. This includes a claim for the court fee for the Application at USD 1,000.

4. The hourly rates of the Claimant’s solicitor team are “well below” the DIFC Court’s guideline rates as set out in Registrar’s Direction 1 of 2023 on Indicative Hourly Charges, save for the cost of a paralegal which is USD 425, as compared with USD 415 in the Registrar’s Direction.

5. The Claimant’s revised costs schedule divides the Claimant’s total solicitor costs into the following categories, setting out the hours and costs incurred (by fee-earner) in relation to each category: (i) attendances on Claimant (5.1 hrs at USD 4,026.50); (ii) attendances on opponents (4.3 hrs at USD 3,159.50); (iii) attendances on others (46 hrs at USD 35,101.50); (iv) work on documents (97.7 hrs at USD 63,540); attendance at hearing (6 hrs at USD 4,540). The Claimant contends that all the hours spent were reasonable, and explains why in relation to each category of cost claimed.

6. In addition to the Claimant’s solicitors’ fees, he incurred Counsel fees at USD 37,134.93; and UAE Counsel fees at USD 17,362.78.

7. The Claimant contends that there can be no comparison between the Claimant’s revised costs schedule and the First Defendant’s costs, as the First Defendant had considerably less work to do. They only produced one short witness statement, and did not include any time costs for liaising with local lawyers.

8. The Claimant requests the Court to record in its order that judgment interest runs on the costs (to ensure that the matter is clear for any onshore court invited to execute the order), relying on the following:

First Defendant

9. The First Defendant’s costs schedule dated 14 March 2025 comprises solicitor costs of AED 118,780 (USD 32,339) and states that Counsel’s fees were to be determined at an hourly rate of GBP 550. The Claimant has submitted in its skeleton argument on costs that the brief fee of the First Defendant’s Counsel for the Application was GBP 34,100, but it is not clear where this information is derived from.

10. The First Defendant relies on RDC 38.30 and 38.31 to submit that immediate assessment will ordinarily take place at the hearing of an application, which would allow for points of dispute to be made and responded to. The First Defendant argues that it is not ordinarily apt for a costs determination to be made on paper, particularly where there are substantial grounds for dispute as to the sum claimed.

11. The First Defendant argues that the Court should simply order detailed assessment under RDC 38.28.

12. If the Court is to carry out immediate assessment, the First Defendant submits as follows:

13. The First Defendant submits that, on detailed assessment, there would be a reduction of at least 40% in the sums claimed, and probably substantially more (similar to the costs in fact incurred by the First Defendant for the Application). An appropriate sum for the purpose of immediate assessment would be 50% of the sum claimed, being USD 82,932.

B. My Decision

14. The starting point of my analysis is RDC 38.30. This provision provides that the Court should as a general rule make an immediate assessment of costs “at the conclusion of any hearing, which has lasted no more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related”, unless “there is good reason not to do so e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with on the material available or there is insufficient time to carry out an immediate assessment”.

15. The Court was unable to make a decision as to immediate assessment of the Claimant’s costs at the conclusion of the hearing of the Application because the outcome of the Application had not been decided. Whilst the First Defendant has raised substantial grounds for disputing the sum claimed, I consider that those grounds can be dealt with on the material available. I therefore see no reason to displace the general rule that the Claimant’s costs of the Application should be immediately assessed, and I turn to immediate assessment of the Claimant’s costs.

16. The principles for the Court to apply on immediate assessment are not controversial, and are set out in RDC Part 38. Where costs are to be ordered on an indemnity basis, costs which were unreasonably incurred or unreasonable in amount will not be recoverable. If there is any doubt as to whether an item was unreasonably incurred or is unreasonable, that doubt must be resolved in the receiving party’s favour, and the burden of proof is on the paying party to show that any item of costs was unreasonably incurred or unreasonable in amount. Proportionality is not a relevant consideration when assessing costs on an indemnity basis.

17. I have carefully considered both the Claimant’s and First Defendant’s submissions. It appears to me that the First Defendant’s submissions on the following categories of costs being unreasonable, or unreasonably incurred, merit further consideration:

UAE Counsel Fees

18. The Claimant submits that local Dubai lawyers assisted the Claimant in gaining access to the court file for the First Defendant’s proceedings against the Claimant in the non-DIFC Dubai Courts; helping the Claimant understand the procedure; and providing advice on the issues raised in those proceedings. The cost claimed also includes the cost of obtaining certified translations of the Arabic documents in those proceedings to adduce as evidence in relation to the Application.

19. I accept that the Application would have required significant advice and support from UAE lawyers to understand the nature of the non-DIFC Dubai court proceedings, and issues arising. I also accept, as submitted by the First Defendant, that proper identification of the UAE Counsel by qualification and seniority would have been helpful in assessing the reasonableness of the costs claimed. However, all things considered, a sum total of USD 17,362.78 for this category of cost does not appear unreasonable in the circumstances.

Counsel Fees

20. The First Defendant points out that, at the Claimant’s Counsel hourly rate of GBP 400, Counsel’s fees equate to 71.75 hours of work (including the hearing). The First Defendant submits that this cannot reasonably be justified for a single application in a field with which Counsel is specialist and familiar. For his part, the Claimant contends that he was reasonable in instructing specialist counsel experienced in anti-suit injunctions before this Court, and in instructing a junior rather than a silk. Further, that the Claimant’s Counsel’s hourly rate was GBP 150 lower than that of the silk instructed by the First Defendant, and his brief fee for the hearing of the Application at USD 32,347.50 was over USD 10,000 less than that of the First Defendant’s Counsel (approximately USD 45,000 at today’s exchange rate). As mentioned at [9] above, it is not clear what the Claimant’s source is for the brief fee of the First Defendant’s Counsel.

21. In any event, on balance, I do not consider that the sums claimed by the Claimant in respect of Counsel fees were unreasonable or unreasonably incurred.

Work on Documents

22. The Claimant submits that the 97.7 hours of time in this category was split appropriately across various grade of fee-earner (for example with the Associate, Ms Singh, conducting 53.1 hours of work compared to Mr Showler's 10.4 hours). This work included preparing and reviewing the application notice, a supporting witness statement and exhibits, a reply witness statement and exhibits, draft orders and undertakings, skeleton arguments, a hearing bundle index, a statement of costs, as well as dealing with documents relating to the Dubai Court case file. The Claimant points out that unlike the First Defendant, which prepared only a short witness statement, almost all the documents in this Application were prepared by the Claimant’s legal team.

23. Notwithstanding these points, I accept the First Defendant’s argument that the amount of time spent on documents by the Claimant’s solicitor team is excessive, and not reasonably justified, particularly bearing in mind that Counsel would have taken the lead in drafting the skeleton argument (and potentially would have assisted on other documents as well, such as the draft orders and application notice). I reduce the costs recoverable under this category by one-third to USD 42,360.

Attendance on Others

24. In relation to the 46 hours spent for attendance on others, the Claimant submits that this involved: (i) taking advice from and liaising with Counsel regarding the drafting of the Application and preparation for the hearing; (ii) liaising with UAE lawyers to gain access to the Dubai court file, obtaining advice to understand the procedure before the Dubai Courts, and taking advice on the UAE law points raised by KJM in opposing the Application; and (iii) liaising with the DIFC Court Registry. The Claimant contends that the time is split appropriately across various grade of fee-earner (for example with the Senior Associate, Mr Smith, conducting 29.3 hours of work compared to Mr Showler's 10.3 hours). Further, that these sorts of costs are to be expected in a complex, multi- jurisdictional dispute. The First Defendant disagrees with the latter statement.

25. Having carefully considered the parties’ arguments, I do not consider the solicitor costs incurred by the Claimant in this category to be unreasonable in light of the work involved in the Application, which had a complex legal and factual matrix.

C. Conclusion

26. For the reasons set out above, the Claimant’s costs of the Application are immediately assessed in the amount of USD 144,684.78.

27. In relation to interest, I accept the Claimant’s submissions that judgment interest runs on judgment debts under Article 9(C) of DIFC Law No. 2 of 2025, and that judgment interest is simple interest at 9% per annum pursuant to Practice Direction 4 of 2017. Under RDC 36.31, interest shall begin to run from the date that judgment is given. Interest shall therefore run on the sum awarded from 26 March 2025.