Claim No: CFI 070/2018

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

IDBI BANK LIMITED

Claimant

and

(1) MABANI DELMA GENERAL CONTRACTING CO LLC
(2) HELIOPOLIS ELECTRIC COMPANY LLC
(3) DELMA ENGINEERING PROJECTS COMPANY LLC
(4) DELMA EMIRATES DIESEL
(5) DELMA EMIRATES GENERAL TRANSPORT
(6) AHMED KHALIL KHALED ALMERAIKHI
(7) SHERIFA AHMED KHALIL KHALED ALMERAIKHI
(8) MARIAM AHMED KHALED ALMERAIKHI

Defendants

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

UPON the Claimant’s Amended Claim Form dated 16 October 2018 (the “Claim”)

AND UPON the Order of Justice Lord Angus Glennie dated 23 March 2022 (the “Sanctions Order”)

AND UPON the Sixth Defendant’s Application No. CFI-070-2018/11 dated 30 December 2024, seeking to strike out the Claim against the Sixth Defendant and to set aside the Sanctions Order against the Sixth Defendant (the “Set Aside Application”)

AND UPON the Sixth Defendant’s Application No. CFI-070-2018/12 dated 19 March 2025, seeking relief from the sanctions imposed in the Sanctions Order against the Sixth Defendant (the “Relief from Sanctions Application”)

AND UPON hearing the Claimant’s representative and the authorised representative of the Sixth Defendant at an Application Hearing before H.E. Deputy Chief Justice Ali Al Madhani on 8 July 2025 (the “Hearing”)

IT IS HEREBY ORDERED THAT:

1. The Sanctions Order shall be set aside to the extent that it is operative against the Sixth Defendant.

2. The Claimant shall pay the costs of the Applications to the Sixth Defendant.

3. Quantum for costs will be determined by the Court by way of filed submissions, as follows:

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 22 January 2026
At: 8am

1. The Sixth Defendant has filed two applications– a Set Aside Application dated 30 December 2024 and Relief from Sanctions Application dated 19 March 2025, together “Applications” – in pursuit of the removal of the Sixth Defendant from these proceedings.

2. The Applications are materially similar. The Relief from Sanctions Application essentially acts to correct the procedural issues in the Set Aside Application, and the reply to both Applications by the Claimant is substantially the same. However, as the Applications were not merged nor was the Set Aside Application withdrawn, and as both Applications were addressed in the Hearing, I will separate them within the Reasons. Nonetheless, I will converge the Applications for the purpose of my final decision, since both Applications seek the same relief.

3. Due to the Court’s familiarity with the case, a reiteration of the background and procedural history will be dispensed with except where necessary to reference.

The Set Aside Application

4. This Application seeks to;

5. Rules 20.2 and 20.8 of the DIFC Courts (“RDC”) apply to the removal of a party in existing proceedings. These respective rules state that:

6. The Sixth Defendant, deceased, is represented by way of Power of Attorney executed and registered as No. 173010/1/2020 and notarised on 22 October 2020 by his daughter, Alanood Ahmed Khalil Khaled Almeraikhi (the “Representative”). This application relies heavily on the first witness statement of the Representative (1/WSR), its corresponding exhibits, and the submissions made orally at the Hearing.

7. The Sanctions Order followed the Order of Justice Glennie dated 2 March 2022. The 2 March 2022 Order, insofar as it affected the Sixth Defendant, rejected the Representative’s oral application for a stay of proceedings, required document production as part of the internal investigation into the affairs of the Delma Companies, and required the filing and service of affidavits which contained the information listed at paragraph 5 of the October 2021 Consent Order amongst other production requests.

8. The Representative, in 1/WSR, objects to the Sanctions Order on the basis that the Sixth Defendant’s conduct was neither intentional nor indicative of his disregard of the Court’s directions.

9. It is the Sixth Defendant's position that he was the victim of fraud, and so should not be subject to the current proceedings. The Facility Agreement and Personal Guarantee dated 31 May 2016, central to the case, was not signed by the Sixth Defendant and he did not personally submit any request to the Claimant for a loan. Instead, his signature was forged on the Facility Agreement by Mr Zulfiqar Haider and Mr Umesh Mohanan (the “Officers”).

10. The Sixth Defendant filed a criminal case with the Abu Dhabi Police against the Officers. On 16 October 2024, Abu Dhabi Criminal Courts found that the Officer unlawfully obtained bank facilities and loans and was directly responsible for forging documentary credits, financial guarantees and lease contracts, all under the fraudulent authorisation of the Sixth Defendant.

11. The actions of the Officers caused a financial crisis for the Sixth Defendant, and so he could not fund nor manage the Claim, which effectively led to the Sanctions Order.

12. On 18 July 2024, in case No. 11376 of 2017 filed by the Defendants, a Supplementary Expert Report submitted by a three-expert committee appointed by the Abu Dhabi Public Funds Prosecution established that the Sixth Defendant was not a signatory to the Facility Agreement or Personal Guarantee relied on by the Claimant, therefore supporting the findings in the original October 2024 judgment. At page 16 of the Supplementary Report (as translated), it is stated that “the three signatures attributed to [the Sixth Defendant] …submitted by [the Claimant] …were not issued by the aforementioned person but rather are forged signatures on him through imitation.” Hence, the Sixth Defendant’s involvement and liability is false; a defence that has been consistently submitted since the initiation of these proceedings, and previously supported by three separate expert reports dated 12 April 2020, 29 May 2020 and 15 July 2020. Further, the Sixth Defendant submits that he was not present in the UAE on 31 May 2016; immigration records confirm he was in Morocco between 11 May 2016 and 5 March 2017.

13. The Sixth Defendant denies in 1/WSR his day-to-day involvement in the Delma Group due to his age and health condition; at the date of 1/WSR, the Sixth Defendant was still undergoing cancer treatment in the United States. When attempting to comply with production requests, it was discovered that most of the relevant documents had been destroyed or disposed of by the Officers upon the initiation of the criminal complaints filed against them. Further financial difficulties led to the Defendants’ common legal representation ceasing to act, eventually triggering the Sanctions Order.

14. On the time between the Sanctions Order and this application, it is submitted that the Sanctions Order itself was issued on a fundamental factual error, which could only have been corrected by the Supplementary Expert Report. This report was filed as evidence in these proceedings upon the Sixth Defendant becoming aware of it; it would have been impossible for the Sixth Defendant to have acted prior to the date of filing this application

15. Considering the aforementioned evidence and the authoritative criminal judgment from the Abu Dhabi Public Funds Prosecution, the Sixth Defendant contends that maintaining the Sanctions Order against him would be unjust, unreasonable and contrary to the Overriding Objective, and that any prejudice felt by the Claimant for non-compliance is suffered in excess by the Sixth Defendant as he should not have been part of proceedings as a defendant from the date of filing the Claim.

The Response

16. The Claimant substantially relies on the first witness statement of Kareem Bessisso (1/WSK) in objection to the Set Aside Application, and the oral submissions made at the Hearing.

17. Overall, the Claimant’s position is that the application is legally misconceived by relying on RDC 1.6 and 4.1, as these provisions do not provide any legal basis for setting aside or striking out a defendant after a final judgment, nor awarding costs in the Sixth Defendant’s favour, but instead are used to attempt to convince the Court to use its unfettered discretion to immune the Sixth Defendant without having to provide proof of procedural or legal irregularity. RDC 4.1 allows the Court to manage live proceedings, not to reverse completed procedural consequences without invoking the specific rules governing that relief, and RDC 1.6 is a mere reference to the general aims of the Court concerning case management. The correct rule is RDC 4.49. Therefore, this application should fail on not being submitted under the correct provision, as well as failing to address the essential components of failing to explain the delay in filing and the reason for his serious disclosure breaches.

18. On the Sixth Defendant’s submissions that he is not an appropriate or essential part of the Claim, the Claimant responds that the Sixth Defendant is liable for repeated non- compliance that should not be circumvented to the detriment of the Claimant without legal reason. The Claimant expected to be in receipt of a large amount of contemporaneous material by the Defendants, including the Sixth Defendant, at the point of document production following the standard document production given on 29 July 2021. The Claimant advances that no documents contemporaneous with the alleged fraud or internal investigation were produced.

19. After the parties subsequently exchanged requests for production on 17 and 18 August 2021, the Claimant considered that there were numerous material defects in the Defendants’ compliance with their disclosure obligations. These concerns included, amongst other things, that:

20. Following the hearing on 24 October 2021 before Justice Giles, which was listed to discuss the issues with the Defendants’ document production, the parties agreed by Consent Order date 28 October 2021 that the Defendants would produce documents uncovered as part of the internal investigation into the affairs of the Delma Group and that the Defendants provided consent in relation to the production of documents relevant to the proceedings by their third party professional advisors. Further to the Consent Order, the Defendants were individually required to provide an affidavit setting out the scope of the documents in their possession by 7 November 2021 and the Defendants’ legal representative (at the material time) was also required to provide a sworn affidavit confirming that they had conducted reasonable enquiries and that the affidavits to be provided were true to the best of his or her knowledge and belief also by 7 November 2021.

21. Affidavits were filed between 7 and 9 November 2021, which the Claimant contends contained serious inaccuracies, omissions and inconsistencies. The Defendants produced a further body of emails on 22 November 2021 which undermined their case and showed that they were, at around the same time of the alleged discovery of the fraud, negotiating with different banks and liaising with financial advisors about the restructuring of their debts. They appeared to suggest that the Defendants were aware of the liabilities to the Claimant in 2017 and that at the time there was no suggestion that there had been any fraud.

22. Following the 2 March 2022 Order, the Claimant contends that it had heard nothing from any of the Defendants – including the Sixth Defendant – and no attempt for compliance had been made. The Sanctions Order was subsequently issued, striking out the Defence for the First, Fourth, Fifth, Sixth, Seventh and Eighth Defendants. Amongst the others, Judgment was issued against the Sixth Defendant for USD 5,633,240.37 in respect of the Claimant’s claim in debt under paragraph A of the Prayer to the Particulars of Claim; and USD 3,320,242.11 in respect of the contractual interest to 22 March 2022, and costs of variable amounts.

23. Essentially on the aforementioned matters, the Claimant submits that these issues should have been contained to pleadings, case management and/or the trial; not for a post-judgment collateral attack.

24. Finally, the Set Aside Application, which the Claimant submits was not validly served, was filed nearly 3 years after the Sanctions Order. The Claimant’s position is that the Sixth Defendant has not acted to cure its non-compliance and remains in breach of the orders. The 2020 expert reports were put in evidence to set aside the default judgment, but the subsequent March 2022 orders were issued regardless; the evidence did not hold.

25. On the above basis, the Claimant requests that the Court dismiss the Set Aside Application and award costs in the Claimant’s favour.

The Relief from Sanctions Application

26. This application greatly mirrors the Set Aside Application in the relief sought, being:

27. The material difference is that this application is brought pursuant to RDC 4.49, which reads:

It is a commonality in the Court to apply a three-stage test when considering applications brought under RDC 4.49; (i) whether the breach is significant and serious; (ii) why the breach occurred; and (iii) whether, in all the circumstances of the case, dealing with the case justly required granting or refusing relief from sanction. If this application is granted, the Sanctions Order falls away automatically from the Sixth Defendant. This test is materially similar to the one applied in the English case of Denton v TH White Ltd [2014] EWCA Civ 906, as adopted in Mad Atelier International B.V. v Axel Manes and Catherine Zhilla [2022] CFI 030.

28. The Sixth Defendant, through the Representative, stresses on the importance that the Court considers “all circumstances”, particularly the criminal judgment of the Abu Dhabi Criminal Courts and the Supplementary Expert Report, which conclusively find that the Claimant’s case against the Sixth Defendant is found on forged documents for which the Sixth Defendant cannot be legally liable.

29. Further, it is submitted that any alleged misconduct was not deliberate or wilful. Any non- compliance resulted from the collapse of the Delma Group following fraud, the destruction or loss of records by the Officers, the lack of access to email systems and documents, the withdrawal of legal counsel due to financial hardship, and the Sixth Defendant’s age, illness, and non-executive role. In the proper administration of RDC 4.49, the Sixth Defendant submits that these circumstances negate inference of sanctionable non-compliance.

30. The Sixth Defendant characterises the Sanctions Order as a disproportionate last-resort, as the Court could have taken preliminary steps in regard to the context as above, of the Sixth Defendant’s defence. It is submitted that the strike out of a defence is only justified where non-compliance makes a fair trial impossible, which was not applicable in these circumstances as a lesser sanction could have achieved compliance before a strike out (Aktas v Adepta [2010] EWCA Civ 1170 and Dentons Europe LLP v Kirwan [2010] EWCA Civ 1406).

31. The Sixth Defendant further submits that the Claimant suffered no irremediable prejudice from the disclosure defaults as the trial had not taken place, with any delay being capable of compensation by costs as the Claim is not time-barred. The Sixth Defendant, however, suffered catastrophic prejudice as he lost the right to defend an ultra-high value claim for procedural reasons only, as well as reputational and financial consequences extending to his estate.

32. Additionally, the Defendants were not legally represented at the Hearing, and insufficient weight was given to this reality. It is stressed that proportionality requires heightened caution where a litigant is unrepresented and the sanction would be determinative of the entire claim.

33. The Sixth Defendant advances that the fraud allegations, and criminal judgment, alter the proportionality calculus and that striking out the defence for procedural non- compliance is especially severe and requires exceptional caution, which was not done in these circumstances (Fairclough Homes Ltd v Summers [2012] UKSC 26). Now that this fraud is proven, such a decision is inherently disproportionate and should be reversed insofar as it affects the Sixth Defendant, which is permitted within the scope of RDC 4.49 and the Court’s case management powers.

34. Again within the framework of context, the Sixth Defendant accepts that it appears these Applications were severely delayed, but were in fact filed immediately after the Sixth Defendant became aware of the October 2024 criminal judgment, and could not have been reasonably filed without it as this contained the conclusive forgery report which forms the foundation of the Sixth Defendant’s defence. Under Article 269 of the Criminal Procedures Law, final criminal judgments are binding as to the occurrence of the crime, and so the DIFC Court is bound to accept the criminal findings of fraud and forgery that legitimise the defence and must not permit the enforcement of a judgment inconsistent with the Abu Dhabi Criminal Court’s findings.

35. Overall, the Sixth Defendant submits that the Relief from Sanctions Application follows the proper procedural route to undo the Sanctions Order and offers an exceptional reason to grant relief under RDC 4.49 as fraud has been proven in the criminal courts. Strict adherence to the Sanctions Order would cause disproportionate prejudice beyond what was originally intended.

The Response

36. To note, much of the argument in opposition to this application is materially similar to the submissions made to object to the Set Aside Application.

37. In summary of the Claimant’s position following the format of the relief from sanctions test:

38. It is the Claimant’s argument that the Defendants, wholly, carried the burden of establishing the allegations of internal fraud as the basis of their defence, and that the relevant documents to do so were predominantly in their possession, therefore they were collectively required to give disclosure pursuant to RDC Part 28. However, the Defendants’ approach to disclosure failed with repeated non-compliance with various orders, which culminated in the Sanctions Order, of which the Sixth Defendant is attempting to circumvent with reliance on a defence that was already considered. This non-compliance is extensively detailed in previous witness statements on behalf of the Claimant, which was conceded in the subsequent orders. Therefore, the Claimant rejects the Sixth Defendant’s assertion that he has conducted proper research and disclosure alongside the other Defendants as part of the alleged internal investigations and later criminal proceedings.

39. As stated previously, contrary to the Claimant’s expectations the Defendants failed to disclose any documents detailing the process of the alleged internal investigation, despite operating as a cornerstone of the defence, and asserted that the relevant evidence was limited to external forensic and expert reports filed in evidence for the criminal complaints. Therefore, the Claimant had no reason to rely on these allegations during proceedings.

40. At the October 2021 hearing, the judge emphasised the Defendants’ collective obligation to disclose contemporaneous internal documents, not just final reports by external experts, and did not trust that these internal documents did not exist. The Defendants’ agreement by Consent Order was meant to act as assurance for compliance, but this was not adhered to; further disclosure only revealed audit reports and documents generated for criminal proceedings which did not satisfy the RDC Part 28 threshold. The Defendants continued to deny that internal records were created and/or accessible despite assertions that “extensive” investigations were carried out.

41. On 22 November 2021, the Defendants disclosed an additional 657 emails without prior notice, attributing the late production to an “indexing error” in earlier searches. The Claimant questioned this explanation, noting that the emails fell outside previously stated date ranges and included material harmful to the Defendants’ case. The newly disclosed emails contradicted the Defendants’ fraud narrative by indicating that: the Defendants were aware of liabilities to the Claimant as early as 2017; there was no contemporaneous reference to fraud at that time; the content was inconsistent with the position advanced in the defence, and they had no access to data belonging to Mr Mohanan, a key individual in the alleged fraud despite emails from Mr Mohanan filed in earlier disclosure. This inconsistency contributed to the lack of credibility of the Defendants and their defence.

42. The Claimant maintained that the Defendants failed to comply meaningfully with the October 2021 Consent Order, and the affidavits served were fundamentally defective. The affidavits suggested that no devices had been accessed, yet earlier representations to the Court asserted that keyword searches had been conducted across all available electronic data.

43. No emails from Mr Haider were disclosed on the justification that his devices had been cleared before his departure from the UAE, but this explanation did not account for the complete absence of email correspondence involving him, particularly given that backups were said to exist for other employees and that Mr Haider’s computer later underwent significant software installations in September 2021, after the Claimant had already issued its initial Request to Produce. In response, the Claimant offered to fund a neutral forensic imaging of the hard drive under a protocol protecting the Defendants’ interests. The Defendants delayed, sought unnecessary clarifications, ultimately rejected the proposal, and imposed restrictive conditions that effectively stalled the process. Because of this, the Claimant asserts that the only reasonable conclusion to be drawn is that information was being withheld.

44. On the Sixth Defendant's conduct specifically, the Claimant submits that he claimed to have been in daily contact with the Seventh and Eighth Defendants during the material time, of which such communications were not disclosed. The explanations for this – lack of access to the data and personal internal searches – were inconsistent. Further inconsistencies were that all email provider data had been lost, but failed to provide basic information about email providers, deletion events, or recovery efforts. Evidence showed continued use of these domains into 2018, directly contradicting the Defendants’ account.

45. Further, the Claimant submits that the Defendants initially stated, in sworn statements and submissions to the Court, that hardcopy records had been searched and reviewed by the Sixth Defendant and produced where relevant. However, when pressed later, they reversed this position, asserting that the hardcopy records were in total disarray and effectively unsearchable. This directly contradicted earlier sworn evidence and representations to the Court, further undermining the credibility of the Defendants’ disclosure efforts due to the Sixth Defendant’s conduct directly.

46. The Claimant’s overarching position on the Relief from Sanctions Application is that the Sixth Defendant relies on recycled, unsubstantiated allegations and has failed to produce a single contemporaneous document evidencing its existence, scope, conduct, or findings, or even basic details such as who carried it out and when. Only inadequate, non-compliant documents were produced, alongside inconsistent and implausible descriptions of the alleged investigations. Therefore, this is merely another attempt to evade sanctions and, ultimately, compliance with an existing enforceable order.

47. The Claimant objects to the Sixth Defendant’s reliance on immigration records in support of his fraud investigations into the Officers on the evidence of Mr Dharmendra Kumar, a senior officer of the Claimant bank, which shows that the Sixth Defendant was directly involved in negotiating the facility and knowingly authorised and approved its terms. The Claimant relies on Mr Kumar’s allegations that the Sixth Defendant personally attended meetings with senior bank officials in December 2015 to discuss the sanction letter and agreed to provide an accepted version to the bank. In May 2016, the facility and guarantee documents were executed through a process expressly arranged to obtain the Sixth and Seventh’s Defendant’s signatures, which were returned shortly thereafter. The Claimant maintains that the Sixth Defendant’s physical presence is irrelevant, as he authorized the signing in his absence, which is consistent with the evidence of the arrangements made at the material time.

48. The Claimant further relies on evidence demonstrating that the Sixth Defendant was fully aware of the facility well before the commencement of proceedings. In May 2017, the Sixth Defendant was contacted by the bank regarding defaults and his liability under the guarantee, yet he did not deny knowledge or express surprise. He subsequently attended meetings with the bank in June and July 2017, proposed mechanisms to settle the debt, signed and stamped acknowledgements of liability, and instructed third parties to pay the bank directly. He was also involved in communications concerning debt restructuring with other lenders and provided post-dated cheques in support of the facility, which were processed without any challenge to the authenticity of his signatures.

49. The Claimant contends overall that the Sixth Defendant’s actual conduct contradicts with his evidence filed in relation to the Applications, and so should not be removed from proceedings as he remains liable for the debt incurred and subject to the sanctions imposed by the Courts for non-compliance with production requests, which were reasonable and proportionate in accordance with the permitted scope under RDC Part 28. The new evidence – the Supplementary Expert Report and the October 2024 judgment from the Abu Dhabi Criminal Court – do not actually excuse the Sixth Defendant from liability as the Claimant is not named in the judgment. Therefore, the weight of this evidence in these proceedings is null.

50. Taken together, this conduct is submitted to be wholly inconsistent with the Sixth Defendant’s position that he was not involved with material matters of the Delma Group and had no knowledge of the relevant agreements, and is instead a victim of fraud. The recycled arguments of the Sixth Defendant do not reach the threshold to grant the application under RDC 4.49 as the evidence is unsubstantiated and delivered remarkably late. As stated previously, the Claimant would suffer in excess of the prejudice felt by the Sixth Defendant as part of these proceedings if the Applications were granted. It is in the interests of justice, therefore, to dismiss both Applications and grant costs in favour of the Claimant.

Discussion and Conclusion

51. The jurisdiction of the Court to remove a party in live proceedings is found in RDC Part 20, as quoted at paragraph 5 of this Order. The rule is a discretionary one, and so an objectively reasonable approach will be taken when evaluating the corresponding submissions and the scope to grant relief from sanctions under RDC 4.49.

52. Taken together, the Applications pursue a single objective: to set aside the Sanctions Order as it cannot properly stand in light of subsequent, authoritative criminal findings and the absence of any sustainable case against the Sixth Defendant as an individual, who should be removed from proceedings as a consequence. The Relief from Sanctions Application does not seek to advance a new case, but rather confirms the Set Aside Application through the correct procedural gateway under RDC Part 4. In substance, the Applications contain the same considerations of proportionality while introducing new evidence. Therefore, for the purpose of this Order, I will merge the Applications into one, and refer to them as such.

53. The Court should assume that the initial order to strike out the defence of the Sixth Defendant in the Sanctions Order was properly made, contrary to the submission made by the Sixth Defendant during the Hearing. Therefore, for the purpose of this Application, only the threshold of the relief from sanctions test will be considered

54. Foremost among those considerations is the criminal judgment of the Abu Dhabi Public Funds Prosecution. I accept that this judgment constitutes a definitive and binding determination by a competent criminal court that the Officers within the Delma Group engaged in systemic fraud, forgery, and deceit, including in relation to the Facility Agreement and the Personal Guarantee relied upon by the Claimant. Even taking the expert evidence from 2020 and 2024 at its lowest; that it may not conclusively identify the individual perpetrator of the signature fraud, the combined effect of the criminal judgment and the expert findings establishes, with clarity, that the Sixth Defendant was not a true signatory to the relevant agreements.

55. Within the relevant context, in my view the Claimant has failed to articulate any coherent basis upon which the Sixth Defendant, as an individual, could be liable for the loan, or properly subjected to the ultimate sanction of strike-out and judgment. The Application does not seek to immune all the remaining Defendants, only the Sixth, yet the Claimant’s case proceeds at a level of generality directed to the Defendants collectively, without engaging with the distinct position of the Sixth Defendant, his lack of involvement in the procurement of the loan, or the proven fraud of the central documents to the Claim. There is nothing in the Claimant’s submissions that confronts, let alone overcomes, the consequence of the criminal judgment.

56. While I recognise the Claimant’s reliance on an asserted pattern of non-compliance with disclosure orders, including the Sanctions Order, of which the Sixth Defendant maintains that there was partial compliance, I am satisfied that this analysis impermissibly conflates the position of the Sixth Defendant with that of the other Defendants and Officers who may be or were implicated in the fraud and benefit of the loan amount. The evidence demonstrates that the Sixth Defendant made genuine attempts to comply with this Court’s orders where possible, while simultaneously navigating criminal proceedings, loss of access to documents, and circumstances beyond his control. The Sixth Defendant maintained his fraud defence at all stages and continuously applied for extension of time and/or a stay of proceedings, which was refused.

57. The fraud allegations (which have now been proved) restricted the Sixth Defendant from full compliance with the various orders issued throughout these proceedings as the Sixth Defendant sought to rely on the outcome of the criminal proceedings in his defence of this case. It took over seven years to secure the criminal judgment, which states across pages two and three of the official translation:

58. I concur with the Sixth Defendant that any failures must be assessed in that specific context. It was procedurally erroneous to treat the Sixth Defendant in the same manner as other Defendants given the difference of position. I also allow that, while it is unusual to accept an application for relief from sanctions two years after the breached order was issued, the Sixth Defendant has shown proportionate effort in both complying with the orders issued by this Court throughout proceedings while pursuing his criminal complaint to demonstrate that he should not have been part of these proceedings from the outset by continuing with the criminal case, as well as dealing with his illness, financial and reputational loss, and loss of legal representation until his death.

59. Crucially, the Claimant has not explained how, in circumstances where a competent criminal court has found that the Sixth Defendant was not involved in the procurement of the loan, it remains just or proportionate to maintain proceedings against him, let alone to uphold a sanctions-based judgment depriving him of any merits determination. To do so would be to permit procedural default to override substantive justice, and to sidestep the binding effect and evidential weight of the criminal judgment.

60. In these circumstances, there is insufficient material capable of circumventing the findings of the Abu Dhabi court or justifying the continuation of proceedings against the Sixth Defendant. His inclusion in the Claim represents a procedural irregularity that goes to the heart of the matter, given that the procurement of the loan is the foundation of the Claim itself. The Sanctions Order was therefore not only disproportionate, but fundamentally misdirected as against the Sixth Defendant. The Sixth Defendant is entitled to proceed to a fair trial.

61. I am satisfied that the relief from sanctions test has been met. I do not consider the Sixth Defendant’s ‘breach’ of the Sanctions Order to be significant or serious, as there have been proportionate attempts to comply, at least partially, and his maintained defence of fraud was proven in the Abu Dhabi criminal courts. The breach only occurred as it was not possible to obtain the criminal judgment before it was issued, some seven years after the complaint was filed. In all circumstances, it is reasonable and proportionate to relieve the Sixth Defendant from sanctions imposed by this Court.

62. The Applications are granted by way of the following specific relief; insofar as it affects the Sixth Defendant, the Sanctions Order is set aside pursuant to RDC 4.49, and relief from sanctions is granted. The Sixth Defendant is entitled to proceed with his defence to trial.

63. The Claimant shall pay the costs of the Applications, quantum of which will be assessed by the Court on the standard basis. The Sixth Defendant shall file a short submission on costs, to be no longer than three pages, within five working days from the issue of this Order. The Claimant shall file a response, no longer than three pages, within three working days from the date of service of the Sixth Defendant’s costs submissions.