Claim No: CFI 070/2018

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF APPEAL

BETWEEN

IDBI BANK LIMITED

Claimant/Appellant

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

Sixth Defendant/Respondent

(7) SHERIFA AHMED KHALIL KHALED ALMERAIKHI
(8) MARIAM AHMED KHALED ALMERAIKHI

Defendants

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

UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 22 January 2026 (the “22 January Order”)

AND UPON the Claimant’s Appeal Notice dated 12 February 2026 seeking permission to appeal the 22 January Order (the “PTA Application”)

AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 25 March 2026(the “25 March Order”)

AND UPON the Claimant’s Application No. CFI-070-2018/13 dated 9 April 2026 seeking a stay of the 25 March Order pending the determination of the PTA Application (the “Stay Application”)

AND UPON the Order with Reasons of H.E. Deputy Chief Justice Ali Al Madhani dated 21 May 2026 dismissing the PTA Application and the Stay Application

AND UPON the Claimant’s Appeal Notice dated 11 June 2026 seeking renewed permission to appeal the 22 January Order and an incidental stay of the 25 March Order (the “Renewed Application”) and (the “Incidental Stay Application”)

AND UPON the Sixth Defendant’s submissions in opposition dated 2 July 2026

IT IS HEREBY ORDERED THAT:

1. The Renewed Application is dismissed.

2. The Incidental Stay Application is dismissed.

3. The Claimant shall pay the Sixth Defendant’s costs of the Renewed Application and the Incidental Stay Application to be assessed on the standard basis by a process of immediate assessment in accordance with the directions which follow.

4. Within twenty-one (21) days of the date of this order the Sixth Defendant is to file a Statement of Costs together with any submissions in support of the costs claimed.

5. Within twenty-one (21) days of the date of service of the Statement of Costs the Claimant is to file any submissions in opposition to the quantum of the costs claimed.

6. Within fourteen (14) days of the date of service of the Claimant’s submissions pursuant to the preceding order, the Sixth Defendant shall file any submissions in reply.

7. The quantum of the Sixth Defendant’s costs to paid by the Claimant will thereafter be assessed on the papers by H.E. Chief Justice Wayne Martin.

Issued By:
Hayley Norton
Assistant Registrar
Date of issue: 20 July 2026
At: 2pm

Summary

1. The Claimant, IDBI Bank Limited (the “Bank”) applies to the Court of Appeal for permission to appeal from the decision of the Judge at First Instance (the “Judge”) in which he upheld an application by the Sixth Defendant, Ahmed Khalil Khaled Almeraikhi (deceased) (“Mr Almeraikhi”) for relief from sanctions which were imposed on him in the form of an order that his defence be struck out and judgment be entered on the Bank’s claim against him. The Judge ordered that the order for sanctions be set aside, with the result that Mr Almeraikhi’s defence was reinstated and the matter could proceed to trial. The Renewed Application is made to the Court of Appeal because the Judge refused an application for permission to appeal which was made to him.

2. For the reasons which follow, the Bank has failed to establish that any of its grounds of appeal has a real prospect of success or that there is any other compelling reason why the appeal should be heard. Accordingly, the Renewed Application must be dismissed with costs.

The procedural history

3. These proceedings have a lengthy and convoluted procedural history. The history which follows deals only with those matters that are relevant to the Renewed Application.

4. The Bank commenced these proceedings against all Defendants in October 2018, claiming that it advanced funds to the First Defendant pursuant to a Facility Agreement dated 31 May 2016 in the amount of USD 7m. and against the other Defendants as guarantors of the First Defendant’s indebtedness to the Bank under that Agreement. The amount claimed was USD 6,237,152.10.

5. According to the Bank, Mr Almeraikhi was the Chairman and primary owner of the Delma Group, a large international business conglomerate operating in, amongst other things, infrastructure, engineering and general contracting. The First, Third, Fourth and Fifth Defendants are each companies within the Delma Group. The Seventh and Eighth Defendants are Mr Almeraikhi’s daughters and business partners.

6. Service of the proceedings on all Defendants was not effected until 9 June 2019. As no Defendant entered an Acknowledgement of Service or Defence, on 23 October 2019 default judgment was entered against all Defendants in favour of the Bank.

7. In April 2020, the Defendants applied to set aside the default judgment. In support of that application it was alleged that the Facility Agreement with the Bank was the product of a wide scale fraud allegedly perpetrated on the Defendants by the Chief Executive Office of the Delma Group, Mr Zulfiqar Haider and the Chief Financial Officer, Mr Umesh Mohanan. In support of the application Mr Almeraikhi provided a witness statement in which he asserted that he neither signed nor authorised the signing of the Facility Agreement or the Personal Guarantee. In the statement he referred to an extensive internal investigation which he asserted was ongoing at the time.

8. In response to the application to set aside the default judgment, the Bank served evidence from a number of witnesses dealing with the Bank’s communications and meetings with Mr Almeraikhi and his daughters in relation to the negotiation and execution of the Facility Agreement. Nevertheless, the application to set aside the default judgment was granted.

9. Pleadings were filed and served in May and June 2021. The Defendants asserted that they did not execute or agree to the Facility Agreement or the Guarantees and that they did not know about them. They also asserted that an extensive internal investigation had revealed that their signatures on the documents were forged and that a wider fraudulent scheme had been conducted by Mr Haider and Mr Mohanan.

10. On 10 June 2021, the Court issued directions to take the matter to trial, including a timetable for document production commencing in July 2021, followed by the exchange of witness evidence in October 2021, expert reports in November 2021 and a trial over 3-5 days commencing on 7 February 2022.

11. The Bank asserted that Mr Almeraikhi’s production of documents in response to the Bank’s request was highly unsatisfactory in many respects which it is unnecessary to detail.

12. The Bank’s complaints with respect to the inadequacy of Mr Almeraikhi’s disclosure were placed before the Court at a hearing on 24 October 2021. Following the hearing the parties agreed upon the terms of a consent order which required each Defendant to file and serve affidavits containing specific information in relation to the storage of data and documents after which the parties were to endeavour to agree the steps that would be taken in the subsequent stages of the document production process by the Defendants, including with respect to any search criteria to be applied.¹

13. The Bank asserted that Mr Almeraikhi failed to comply with the terms of the consent order or with his obligations with respect to document production. As a result, on 23 December 2021 the Bank applied for an order that unless Mr Almeraikhi (and the other Defendants) remedied the deficiencies in their production of documents their Defence would be struck out and judgment entered for the Bank.

14. On 20 January 2022, Mr Almeraikhi’s then solicitors wrote to the Registry advising that they had not received instructions from the Defendants in relation to the application for the Unless Order and were not in a position to file any responsive evidence. Those lawyers later applied to come off the record and that application was granted on 26 January 2022.

15. The application for the Unless Order was heard on 1 March 2022 by H.E. Justice Lord Angus Glennie. An application by the Bank for immediate judgment was heard at the same hearing. The application for immediate judgment was dismissed although the application for the Unless Order was granted. By orders dated 2 March 2022 various of the Defendants, including Mr Almeraikhi, were ordered to take specific steps with respect to disclosure of documents by specific dates in March 2022. The order provided that in the event any of the Defendants ordered to take such steps did not comply fully with the orders, the defence of that Defendant would be struck out. The Court further directed that the question of whether there had been compliance with the orders made would be determined by the Court at a hearing listed for 22 March 2022.

16. Neither Mr Almeraikhi nor any of the other Defendants were represented at the hearing on 22 March 2022. Following the hearing, orders were made on 23 March 2022 striking out the Defences of six of the Defendants, including Mr Almeraikhi and entering judgment against those Defendants in the amount of USD 5,633,240.37 in respect of the substantive claim, and a further USD 3,320,242 in respect of accrued interest up until 22 March 2022. Costs orders were also made against the relevant Defendants. This order has been described by the parties as the “Sanctions Order” and I will use the same terminology.

17. The Bank contends that its attempts to enforce the judgment have been unsuccessful.

18. On 30 December 2024, Mr Almeraikhi applied for an order setting aside the Sanctions Order together with various ancillary orders including an order striking out his name as a Defendant in the proceedings and for the payment of his costs in the proceedings (the “Set Aside Application”). On 19 March 2025, Mr Almeraikhi applied for an order seeking relief from the sanctions imposed by the Sanctions Order, seeking relief in the same terms as the relief sought in the Set Aside Application. Evidence was served in support of and in opposition to these Applications.

19. By orders with reasons published on 22 January 2026 the Judge ordered that the application for relief against the Sanctions Order should be granted and set aside the Sanctions Order to the extent that it applied to Mr Almeraikhi. The Judge further ordered that the Bank should pay Mr Almeraikhi’s costs of the Applications. The Judge did not grant Mr Almeraikhi’s application for an order that he be removed from the proceedings, with the consequence that Mr Almeraikhi’s Defence was restored and the Bank’s claim against him must proceed to trial. This is the decision from which the Bank seeks permission to appeal.

The Judge’s reasons

20. In his reasons the Judge summarised the two Applications which had been made on behalf of Mr Almeraikhi and the competing submissions of the parties relating to those Applications.

21. The Judge noted that on behalf of Mr Almeraikhi it was asserted that he was not involved in any request to the Bank for a loan and that his signature on the Facility Agreement and Guarantee had been forged by Mr Haider and Mr Mohanan. It was asserted that Mr Almeraikhi filed a criminal case with the Abu Dhabi Police against those men and on 16 October 2024 the Abu Dhabi Criminal Courts found that Mr Mohanan unlawfully obtained bank facilities and loans and was responsible for forging various financial documents, including Guarantees and lease contracts without the authority of Mr Almeraikhi. It was further asserted that on 18 July 2024 a supplementary expert report submitted by a three person expert committee appointed by the Abu Dhabi Public Funds Prosecution found that Mr Almeraikhi was not a signatory to the Facility Agreement or the Personal Guarantee relied on by the Bank in these proceedings. It was contended that this expert report was supported by three other expert reports obtained on behalf of Mr Almeraikhi during 2020. It was also contended that immigration records confirm that Mr Almeraikhi was not in the UAE on 31 May 2016 when the Facility Agreement and Personal Guarantee were allegedly signed as immigration records confirm that he was in Morocco between 11 May 2016 and 5 March 2017.

22. Reference was also made to the witness statement filed by Mr Almeraikhi before his death in which he asserted that he had limited day to day involvement in the Delma Group due to his age and health, as he was undergoing cancer treatment in the United States. It was also asserted that when he attempted to comply with the requests for production of documents it was discovered that most of the relevant documents had been destroyed or disposed of by the allegedly fraudulent officers. It was said that the financial difficulties occasioned by the fraud precluded the Defendants from obtaining legal representation, which resulted in the Sanctions Order.

23. By reason of these matters it was contended that maintaining the Sanctions Order against Mr Almeraikhi would be unjust and unreasonable, and that maintaining a judgment of a little under USD 9m. would be a disproportionate penalty for the failure to comply with Court orders relating to disclosure of documents given the extenuating circumstances in which Mr Almeraikhi had found himself and matters which have occurred since the Sanctions Order was imposed, including the findings of the Abu Dhabi Criminal Courts and the expert report upon which those Courts relied.

24. The Judge noted the Bank’s submissions to the effect that Mr Almeraikhi’s non-compliance with Court orders was recurrent, egregious, and continued to the day of the hearing of the Applications. The Bank further contended that the judgment from the Abu Dhabi Criminal Court was of limited weight as it did not refer to Mr Almeraikhi in the judgment.

25. In his analysis of the Applications the Judge observed that the two Applications pursued a single objective – namely, the setting aside of the Sanctions Order on the basis that it should not stand in light of the subsequent finding of the Abu Dhabi Criminal Court. He therefore proposed to treat the Applications as one Application and to refer to them as such.²

26. The Judge observed that the Court would proceed on the basis that the Sanctions Order was properly made, (contrary to the submissions made on behalf of Mr Almeraikhi) and focus upon the question of whether relief from sanctions should be granted.³ Foremost amongst the considerations relevant to that question, in the Judge’s view, was the criminal judgment in Abu Dhabi. He considered that the judgment constituted a binding determination by a competent criminal court to the effect that senior officers within the Delma Group engaged in systematic fraud, forgery and deceit, including in relation to the Facility Agreement and Personal Guarantee relied upon by the Bank in these proceedings. In the Judge’s view, that finding, coupled with the expert evidence from 2020 and 2024 “establishes, with clarity, that the Sixth Defendant was not a true signatory to the relevant agreements”.⁴

27. The Judge expressed the view that the Bank had “failed to articulate any coherent basis upon which [Mr Almeraikhi] as an individual, could be liable for the loan or properly subjected to the ultimate sanction of strike out and judgment”.⁵

28. The Judge further expressed the view that the Bank’s submissions with respect to Mr Almeraikhi’s non-compliance impermissibly conflated his actions with those of the other Defendants. He considered that the evidence demonstrated that Mr Almeraikhi “made genuine attempts to comply with the Court’s orders where possible, while simultaneously navigating criminal proceedings, loss of access to documents, and circumstances beyond his control”.⁶ In his view the fraud allegations found established by the Abu Dhabi Criminal Court restricted Mr Almeraikhi from full compliance with the various orders which were issued throughout these proceedings.⁷ In his view, other Defendants bore greater responsibility for the failure to comply with the orders of the Court than Mr Almeraikhi.

29. The Judge noted the delay in applying for relief from sanctions but observed that the findings of the Abu Dhabi Criminal Court were not made until more than two years after the Sanctions Order was imposed.

30. The essence of the Judge’s conclusion is found in the following paragraph of his reasons:

“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 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”.⁸

31. The Judge went on to observe that “there is insufficient material capable of circumventing the findings of the Abu Dhabi Court or justifying the continuation of proceedings against [Mr Almeraikhi]”.⁹ Read in isolation, those words might suggest that the Judge was acceding to the application to remove Mr Almeraikhi as a Defendant in the proceedings. However, clearly that was not intended, as the paragraph in which the words are found concludes with the observation that Mr Almeraikhi “is entitled to proceed to a fair trial”.¹⁰ Further, no order was made removing Mr Almeraikhi as a Defendant in the proceedings, and later in his reasons the Judge observed that Mr Almeraikhi “is entitled to proceed with his Defence to trial”

32. The Judge ordered that the Sanctions Order was set aside to the extent that it applied to Mr Almeraikhi and further ordered the Bank to pay Mr Almeraikhi’s costs of the Applications.

33. As noted, the Bank applied to the Judge for permission to appeal. The grounds of appeal are substantially similar to those proposed in the Renewed Application. The Judge gave extensive reasons for refusing the Initial Application for Permission to Appeal, and the Bank has refuted those reasons in its skeleton argument. However, any appeal lies from the order of the Judge granting relief against sanctions, not from the order of the Judge refusing permission to appeal. Any appeal from the Judge’s grant of relief against sanctions will be decided by reference to the reasons which he gave for making that order, rather than the reasons which he gave for refusing permission to appeal. It is therefore unnecessary to consider those reasons.

Permission to appeal – legal principles

34. RDC 44.117 provides:

35. 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.

36. RDC 44.19 provides:

37. 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.

38. 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.¹¹

39. A real prospect of success does not mean a probability of success, but more than mere arguability.¹²

40. “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.¹³

41. 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.¹⁴

42. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.¹⁵

43. 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.¹⁶

44. 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.

45. 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. 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.

46. There are other legal principles which are of particular significance to this case. First, the Judge’s decision was a case management decision which required the Judge to assess and weigh many factors in order to determine whether to exercise his discretion to relieve Mr Almeraikhi from the sanction of a judgment of almost USD 9m. and which precluded any Defence being advanced on his behalf.

47. The Court recently reviewed the principles relating to appellate restraint in the review of decisions of Judges at first instance in Krystal Financial Consultants v Nextgen Robopark Investments LLC.¹⁷ As observed in that decision, there are various factors which will lead an appellate court to show restraint in the review of a decision at first instance. Those factors include:

48. The fact that the decision made by the Judge involved multi-factorial assessment is clear from the Rule which governed his decision, namely RDC 4.49 which provides:

49. This is a paradigm example of the type of case in which an appellate court will only intervene if satisfied that the decision was “plainly wrong” in the sense described in Krystal.

50. The second legal principle which is particularly relevant to this case is the principle that appeals lie against orders made by Courts of first instance, rather than against the underlying reasoning of the order – see Dagher v Capital Investment International Ltd.¹⁸ So, as observed in that case, an appeal will not be allowed if the appellate court considers that the orders made were correct, even though some of the reasons given for making the orders may be open to question.

51. The application of these two principles to the circumstances of this case has the consequence that in order to obtain permission to appeal the Bank must establish that the Judge’s conclusion that he should exercise his discretion to grant relief from the sanction of the imposition of judgment by reason of procedural default and without regard to the merits of the claim, by reason of all the circumstances of the case including:

was outside the range of decisions open to a Judge acting reasonably in the exercise of his or her discretion.

52. Unless the Bank can satisfy that requirement, its proposed appeal has no real prospect of success. It follows that unless the Bank’s complaints with respect to the reasons given by the Judge sustain the proposition that the Judge’s overall conclusion was “plainly wrong” the Bank’s appeal has no real prospect of success and permission to appeal must be refused.

The grounds of appeal

Ground 1

53. The first ground of appeal comprises approximately three pages of text. The ground fails to comply with the general obligation to ensure that grounds of appeal should be formulated in concise terms and includes at least six separate grounds and argument advanced in support of those grounds.¹⁹ This is not a style of appellate pleading that should be encouraged.

54. Notwithstanding the prolixity of the ground, it is said to be advanced “without prejudice to all of the submissions to be made in support of” the Bank’s appeal. Such a reservation is inappropriate. The Rules require an appellant to specify the grounds of appeal relied upon, and the Bank will be limited to those grounds.

55. The first ground included within ground 1 asserts that the Judge erred by concluding that the judgment of the Abu Dhabi Criminal Court constituted a definitive binding judgment that Mr Almeraikhi was not a true signatory to the Facility Agreement and Personal Guarantee. Although there are passages in the Judge’s reasons which, if read in isolation, might sustain the view that he had concluded that the criminal judgment bound the parties to these proceedings, it is clear from his reasons as a whole, and from the orders which he made, that this was not his intention. If the Judge had arrived at that conclusion, no doubt he would have acceded to Mr Almeraikhi’s application to be removed from the proceedings. However, he did not accede to that application and on two occasions in his reasons referred to the claim against Mr Almeraikhi proceeding to trial. Accordingly, this ground challenges a finding which, upon analysis, the Judge did not make.

56. The second sub-ground challenges the Judge’s finding that Mr Almeraikhi had made genuine attempts to comply with the Court’s orders. However, leaving to one side that this is a challenge to a finding of fact, even if the finding were reversed, it is clear from the Judge’s reasons that it would have made little or no difference to his ultimate conclusion which was “crucially” based upon the decision of the Abu Dhabi Criminal Court, the expert report relied upon by that Court and the expert reports produced in these proceedings, and the fact that Mr Almeraikhi was only one of many Defendants who were obliged to comply with the order for production of documents.

57. The third sub-ground asserts that the Judge erred by considering that the claims were unsustainable against Mr Almeraikhi because of the decision of the Abu Dhabi Criminal Court when the Bank’s case was that Mr Almeraikhi agreed to enter into the Facility Agreement and Guarantee and instructed an agent to place his signature on those documents.

58. This is another ground of appeal from a decision which the Judge did not make. Although there are passages within the Judge’s reasons which might suggest that he considered the claim against Mr Almeraikhi was unsustainable, for the reasons given in relation to sub- ground 1, this cannot have been his intention or his conclusion - otherwise, he would have dismissed the Bank's claim. The orders made by the Judge provide no impediment to the Bank advancing the claim in the manner in which it has been formulated.

59. Sub-ground 4 challenges the Judge’s finding that Mr Almeraikhi had “continuously” applied for an extension of time and/or a stay of proceedings. This is another ground which, like sub- ground 2, even if established, would have no impact upon the Judge’s ultimate conclusion, essentially for the reasons given in relation to sub-ground 2. Nor would success of this ground have any material impact upon the assessment by the Court of Appeal of the ultimate question of whether the order granting relief against sanctions was “plainly wrong”.

60. The fifth sub-ground asserts that the Judge erred by failing to take into account relevant considerations including six of the matters to which attention is directed by RDC 4.49. This ground faces a number of insurmountable obstacles.

61. First, the ground proceeds on the assumption that the terms of RDC 4.49 provide a checklist of matters which must each be addressed in the reasons given by a Court considering an application under the Rule.

62. Second, it is clear from the Judge’s reasons that he did consider the matters to which reference was made in RDC 4.49 – a conclusion supported by the fact that he included its terms in full in his reasons.

63. Third, it is clear from the grounds advanced that the substantive complaint is not that the Judge failed to take matters into account, but rather that he did not accept the Bank’s position in relation to those matters. Complaints of that kind will not be entertained by an appellate court when reviewing a decision of this kind.

64. Fourth, each of the matters identified in relation to this sub-ground go to the extent of non- compliance with the orders of the Court, and the consequences of that non-compliance. None of them, taken either singly or in combination, go to the substance of the Judge’s discretionary decision, which was to the effect that maintaining a judgment for a little under USD 9m. in circumstances which suggested that Mr Almeraikhi had a defence to the Bank’s claim on its merits was a sanction which was disproportionate to the procedural defaults and would “permit procedural default to override substantive justice”.²⁰

65. The sixth sub-ground asserts that there is a compelling reason why the appeal should be heard because it involves a matter of public interest relating to compliance with the orders of the Court. This assertion lacks any substance. Because none of the other aspects of ground 1 have any real prospect of success, the appeal would provide no occasion for the Court to consider broader questions of policy. Further, and in any event, RDC 4.49 proceeds upon the assumption that sanctions are properly imposed for breach of the orders of the Court unless all the circumstances of the case, including those specified in RDC 4.49 lead to the contrary conclusion. Whether the circumstances support a contrary conclusion in any particular case will depend upon all the facts and circumstances of that case and upon the exercise of the discretion of the Judge to whom the question is presented. It follows that this appeal would not give rise to any questions of principle or policy.

66. For these reasons ground 1 has no real prospect of success.

Ground 2

67. Ground 2 is another ground expressed in prolix terms containing a number of discrete sub- grounds and an inappropriate reservation of the right to make further submissions.

68. The various sub-grounds advanced within ground 2 can be grouped into discrete categories under the overriding proposition that the Judge failed to address the various stages in the test enunciated in Denton v TH White.²¹

69. The overriding proposition suffers two flaws. First, it presumes that the decision in Denton provides a form of checklist, each element of which must be specifically addressed by any Court considering an application for relief from sanctions. In this case the Judge specifically referred to the decision in Denton and, as a matter of substance rather than form, addressed the matters to which reference was made in that case in his reasons.

70. Second, this is another ground in which the substance of the Bank’s complaint is not that the Judge failed to take matters into account, but rather, that the Judge failed to agree with the Bank’s position in relation to those matters, which is not a proposition which an appellate court will entertain in a case of this kind.

71. A group of sub-grounds is concerned with the Judge’s consideration of the extent to which Mr Almeraikhi had failed to comply with the orders of the Court, the significance or seriousness of his breaches and their effect. Each of these sub-grounds suffers the flaw identified in dealing with ground 1 above, in that they focus entirely upon the procedural non- compliance, which the Judge considered elevated procedure above substantive justice. As with the equivalent sub-grounds underground 1, even if the Judge had taken the course which the Bank commended to him, it would have made no material difference to the outcome of his decision, nor would these matters make any material difference to the assessment by the Court of Appeal of the question of whether the order made by the Judge was “plainly wrong”.

72. Another sub-ground asserts that the Judge erred by failing to take into account the question of whether, in all the circumstances of the case, dealing justly required the grant or refusal of the relief from sanctions. That proposition lacks any substance. That is precisely the approach taken by the Judge as is clear from his reasons as a whole.

73. Another sub-ground contends that the Judge erred by concluding that the Sanctions Order was not properly made. It must be accepted that there are passages in the Judge’s reasons which could, arguably, support that proposition. However, when those passages are viewed in the context of the reasons as a whole, it is clear that the Judge did not take that approach. To the contrary, as noted, he expressly observed that the application for relief from sanctions must be considered on the basis that the Sanctions Order was properly made. It follows that the passages in his reasons to which reference is made in support of this ground must be construed as referring to the maintenance of the Sanctions Order, rather than its grant.

Ground 3

74. Ground 3 is admirably succinct. It asserts that the Judge erred by treating the two Applications as, in effect, one Application. This ground lacks substance. The Judge correctly observed that the Applications sought substantively the same relief – that is, the setting aside of the Sanctions Order insofar as it related to Mr Almeraikhi. The most material difference between the two Applications was that relief from sanctions was only sought in the second Application. Bringing the second Application had the same effect as applying to amend the first Application.

75. The Bank has not identified any prejudice which it suffered by reason of the approach taken by the Judge – an approach which was entirely justified in all the circumstances.

76. This ground elevates form over substance and is irrelevant to the question of whether the decision to grant relief from sanctions was within the range of decisions open to a Judge acting reasonably, which is the fundamental question raised by the appeal.

Summary and Conclusion

77. None of the grounds of appeal, even if allowed (and many lack substance) would sustain the conclusion that the Judge’s decision to grant relief from sanctions was outside the range of decisions open to a Judge acting reasonably making a case management decision in the exercise of his or her discretion after undertaking an assessment and evaluation of various different factors. None of the grounds of appeal has any real prospect of success and the Renewed Application must be dismissed with costs.