Claim No: TCD 001/2024

IN THE COURTS OF DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF APPEAL

BETWEEN

ARCHITERIORS INTERIOR DESIGN (L.L.C)

Claimant/Respondent

and

EMIRATES NATIONAL INVESTMENT CO (L.L.C)

Defendant/Appellant

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

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UPON the Judgment of H.E. Justice Roger Stewart dated 31 July 2025 (the “Judgment”)

AND UPON the Order with Reasons of H.E. Justice Roger Stewart dated 22 August 2025 (the “22 August 2025”)

AND UPON the Order with Reasons of H.E. Justice Roger Stewart dated 16 October 2025 refusing the Defendant’s Appeal Notice dated 2 September 2025 seeking permission to appeal the Judgment

AND UPON the Defendant’s Renewed Permission to Appeal Application dated 6 November 2025 seeking to appeal the Judgment and the 22 August 2025 Order (the “Renewed Application”)

AND UPON the Claimant’s submission in opposition dated 27 November 2025

IT IS HEREBY ORDERED THAT:

1. The Renewed Application is dismissed.

2. The Defendant is ordered to pay the Claimant’s costs of the Renewed Application to be assessed on the standard basis unless agreed.

3. Within fourteen (14) days of the date of this Order, the Claimant shall file a statement of its costs with respect to the Renewed Application, together with any short submissions in support of the claim.

4. Within fourteen (14) days of service of the Claimant’s statement of costs, the Defendant shall serve any submissions in opposition to the quantum claimed.

5. The amount of the Claimant’s costs shall thereafter be assessed by H.E. Chief Justice Wayne Martin on the papers by a process of immediate assessment.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 30 December 2025
At: 10am

SCHEDULE OF REASONS

Summary

1. The Defendant, Emirates National Investment Co (L.L.C) (“ENI”) has applied to the Court of Appeal for permission to appeal from the decision of the Judge at first instance (the “Judge”) in which he upheld the claim of Architeriors Interior Design (L.L.C) (“Architeriors”) and entered judgment against ENI following trial (the “Renewed Application”). The Renewed Application is made to the Court of Appeal as the Judge refused ENI’s initial application for permission to appeal. For the reasons which follow, ENI has failed to establish that any of its proposed grounds of appeal has a real prospect of success and the Renewed Application must be dismissed.

The decision at first instance

2. The claim arose from a contract for refurbishment works to be undertaken by Architeriors as contractor to ENI at premises known as the “Amber Residency”.

3. Architeriors’ claim comprises several components including, relevantly to the proposed appeal, a claim for an extension of time (“EoT”) of 200 days and associated prolongation costs. ENI disputed the claims for EoT and prolongation and counter-claimed for various amounts to which it claimed to be entitled including, relevantly to the grounds of appeal:

4. Both parties raised other claims which it is unnecessary to consider as there is no appeal from the Judge’s findings with respect to those issues.

5. The Judge described the Amber Residency as a low rise residential property comprising a basement, ground floor and two residential floors with a total of 74 apartments. At the time of the contract between the parties, the building was approximately 20 years old and thought to be in need of refurbishment.

6. The Judge reviewed the testimony of the witnesses, factual and expert, and concluded that all were seeking to assist the Court. However, he considered that the witness statements provided by Mr Elsadig, who was the only witness of fact called by ENI, amounted to “recitation of documents and argument in a way which was not of real assistance and made it difficult to understand what matters were within his knowledge and what consisted of mere recitation of ENI’s case”¹.

7. The only other witness of fact was Mr Khayer, Architeriors’ Project Manager. Six expert witnesses were called – two by Architeriors and four by ENI. The hearing bundle comprised well over 50,000 pages of documents. In this context the Judge observed:

8. As the Judge’s reasons deal with a number of issues which are not the subject of any proposed ground of appeal, it is unnecessary to review his reasons generally. Rather, it is preferable to consider the reasons relevant to the proposed grounds of appeal in the context of the particular grounds.

Permission to appeal - legal principles

9. RDC 44.117 provides:

10. 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.

11. RDC 44.19 provides:

12. 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.

13. 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.³

14. A real prospect of success does not mean a probability of success, but more than mere arguability.⁴

15. “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.⁵

16. 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.⁶

17. It is also established that a real prospect of success does not mean a probability of success, but more than mere arguability.⁷

18. 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.⁸

19. 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 appellant intervention in such cases.⁹ 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.

20. 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.

21. 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.

Appeals from decision of fact – legal principles

22. It is well established in this and many other common law courts¹⁰ that a Court of Appeal will give considerable deference to findings of fact made by the Trial Judge, given the advantages which that Judge enjoys in relation to findings of fact, having seen the witnesses and having been immersed in the detail of the case when compared to an Appellate Court which lacks those advantages and which is dependent upon transcript and documentary evidence. These principles were enunciated in Lals Holdings Limited & Ors v Emirates Insurance Company (PSC) & Anor¹¹ in the following terms:

23. These considerations have led to the adoption of the principle that in order to succeed in a challenge to a Judge’s finding of fact, the Appellant must demonstrate that the Judge was plainly wrong, or has arrived at a conclusion which is outside the bounds of the conclusions reasonably open on the evidence.¹² Particular considerations apply to findings based on the credibility or demeanour of witnesses, because of the advantage which a Trial Judge enjoys in that regard, but as issues of that kind do not arise in this Application, it is unnecessary to refer to them.

The grounds of appeal

24. RDC 44.31 provides:

25. Very few appellants make any attempt to comply with this requirement and Architeriors is no exception. However, in this case, the generality of the terms of the grounds of appeal is exacerbated by the generality of the skeleton argument provided in support of those grounds. As will be seen, the propositions said to support the grounds of appeal are cast in such general terms, without particulars, that it is very difficult, if not impossible, to evaluate whether there is any substance in the proposition. This approach to the Renewed Application is problematic given that:

Ground 1

26. Ground 1 challenges the Judge’s findings that the contract works were substantially complete by 9 March 2023, and that a Taking Over Certificate (“TOC”) should have been issued on that date. The finding was made in the context of the time related claims – that is, Architeriors claims for EoT and prolongation, and ENI’s claim for liquidated damages (LDs).

27. The ground is expressed in the following terms:

28. The Ground does not state what the Judge should have found in relation to the date upon which the TOC should have been issued, although it appears from the skeleton argument in support of this ground that it is contended that the earliest date upon which the Judge could have found the Works were substantially complete was 17 April 2023 and that he should have found that substantial completion occurred on 5 June 2023, when the Engineer issued the TOC.

The Judge’s findings

29. The Judge’s reasons contain an extensive review of the evidence given by the factual and expert witnesses on the topic of delay. The Judge referred to the joint expert report¹³ and the respective positions of the different experts in relation to causes of delay. In that context, he referred to the “more granular” analysis of the period between 12 January and 5 June 2023 in which the main issues were:

30. In relation to those issues, the Judge found that:

31. The Judge noted the evidence of Mr Khayer to the effect that the Building Completion Certificate inspection was carried out on 8 March 2023 and approved and that Mr Elsadig (ENI’s representative) had stated that TOC would be issued immediately after the Building Completion Certificate, although this did not occur.¹⁷

32. The Judge further noted that “Mr Elsadig produced the relevant correspondence during the period which does suggest that outstanding works were relatively minor and that works were dependent on interfaces with other contractors”.¹⁸

33. The Judge noted that ENI’s expert was of the view that occupation of the first apartment was driven by completion of the fire alarm system. However, the Judge found that it was very unlikely that a tenant would be able to move in a day after completion of a critical system, and that it was more likely that the issue of TOC was driven by the fact that 200 days had occurred since the end of the moratorium on LDs and that:

34. The Judge also noted that when the Engineer issued the TOC in June 2023, a draft EoT was prepared which suggested that the Engineer considered that there were events delaying the contractor.

35. The Judge found that:

36. This is the finding which is challenged by Ground 1.

37. The first portion of ENI’s skeleton in support of this ground challenges the Judge’s allocation of responsibility for the delay in completion at an extremely high level of generality. In this instance, the level of generality does not matter, because the proposition is irrelevant to this ground, which is concerned only with the Judge’s finding with respect to the date upon which Architeriors was entitled to a TOC.

38. The Judge’s finding on that subject is challenged on the ground that it “did not fully address contemporaneous records showing incomplete or defective works within the contractor’s scope at that date, including works to the fire alarm system access panel modifications”. However, apart from the minutes of the meeting held on 14 April 2023, the content of which is contested by Architeriors, and a list of approximately 60 documents which include such things as drawings and plans, almost all of which precede 9 March 2023 and therefore appear irrelevant, the contemporaneous records relied upon to support the proposition are not identified. Moreover, the Judge’s reasons specifically address the issue relating to the fire alarm, the solar panels and the control panels (if that is what is meant by “access panels”).

39. The document upon which reliance is placed are minutes of a meeting held on 14 April 2023 apparently prepared by ENI. The minutes purport to include a list of substantial works which were to be completed by the issue of TOC, and a list of non-substantial works, which although required to be done, would not impede the issue of TOC.

40. However, on 25 April 2023, Mr Khayer on behalf of Architeriors, responded to the purported minutes by an email in which he explicitly contested the proposition that any of the works listed in the minutes were sufficiently substantial to preclude the issue of TOC and asserted that the works were substantially complete.

41. This ground could not possibly succeed on the basis of one document, the accuracy of which was contested at the time, especially when no attempt is made to challenge the evidence upon which the Judge relied for his conclusion, such as the evidence that an inspection for the purposes of the issue of a Building Completion Certificate was carried out on 8 March 2023 and issue of the Certificate was approved. A determination as to the date upon which the works were substantially complete requires a consideration of all the evidence on that topic, rather than one document in isolation. The Judge considered all the evidence on the topic and summarised its salient features in terms which have not been challenged.

42. Another portion of the skeleton supporting this ground asserts:

43. No attempt is made in the skeleton to identify “the agreed expert position” or the “critical periods” the subject of the proposition. However, those patent deficiencies don’t matter, because, like other portions of the skeleton relating to Ground 1, they are irrelevant to the ground, which is not concerned with the allocation of responsibility for delay, but rather, the date upon which substantial completion occurred.

44. The skeleton in support of this ground concludes with the list of approximately 60 documents to which reference has already been made, and which are said to be relevant to ENI’s submissions. However, no attempt is made to establish the relevance of any of the documents. Many are, on their face, at best only indirectly relevant, such as drawings and plans. Some, on their face, appear contrary to ENI’s submissions, such as the letter from Architeriors dated 24 January 2023 asserting that the works were substantially complete and fit for use and requesting the issue of the TOC. The only documents that would be relevant are those which establish the state of the works as at 9 March 2023. As many of the documents in the list precede that date, it is difficult to see how they could be relevant to the ground asserted.

45. For these reasons, Ground 1 has no real prospect of success.

Ground 2

46. Ground 2 asserts:

It appears from the heading to the ground that it relates to ENI’s counter-claims.

47. The skeleton argument provided in support of this ground is cast at the same level of generality as the ground itself. General reference is made to parts of ENI’s counter-claims without identifying those parts. Reference is made to “contemporaneous records, site instructions and correspondence” without identifying the documents or explaining how they sustain the ground, other than concluding the skeleton with a list of approximately 80 documents which are said to be relevant to the ground.

48. It is asserted that:

without providing any indication of the items that were rejected or identifying the categories of evidence which were said to have been accepted in some cases but disregarded in others.

49. As with Ground 1, no attempt is made in the skeleton to indicate how or why the many documents listed support the very general propositions contained in the ground. The ground is concerned with evidence relating to the situation after Architeriors left the site. However, many of the documents bear dates in 2022, while Architeriors was on site performing works.

50. The very limited information supplied in support of this ground fails to establish that it has any real prospect of success.

Ground 3

51. Ground 3 is concerned with ENI’s counter-claim in respect of allegedly defective waterproofing works undertaken by Architeriors. It states:

52. The ground appears to derive from a misunderstanding of the Judge’s reasons for rejecting ENI’s claim.

53. In his reasons, the Judge noted that clause 11.1 of the Contract required Architeriors to execute work required to remedy defects or damage after receiving notice of such defect or damage from ENI, within the timeframe specified by ENI or, in the case of urgent work, within 12 hours, on the basis that if the work was not done within the applicable time, ENI was entitled to engage other contractors to undertake the work at Architeriors’ expense. ²¹

54. The Judge summarised the evidence on the subject, including the evidence given by Mr Elsadig, Mr Khayer, Mr Clark and Mr Corelj.

55. The Judge observed that as the claim was based upon the failure of Architeriors to undertake work the subject of a notice from ENI, it would be expected that the evidence would establish a link between the service of a Notice and the performance of work, the cost of which is included in the claim. In making this observation, the Judge was not making any observation with respect to the proper construction of the contractual provisions, but rather, as to the nature of the evidence required to establish, on the balance of probabilities, that an amount paid to a third party contractor was in respect of rectification work which had been the subject of a Notice to Architeriors.

56. In this context, the Judge observed that in respect of one apartment, a Notice was given on 10 March 2023, but the quotation for the work the subject of the claim was dated 30 May 2025, more than two years later, raising a question as to whether the work the subject of the quote was the same as the subject of the Notice given more than two years earlier.

57. Further, the Judge noted that purchase orders were often given months after work was done, giving the example of a purchase order dated 5 June 2024 in respect of work done three months earlier on 4 March 2024.

58. The Judge also noted that there is no clear evidence of notification being given of individual defects as one would expect, and that it was clear that Architeriors did carry out substantial work when notified of problems.

59. In the result, the Judge concluded that he was not satisfied to the requisite standard that ENI had established that the amounts which it claimed were in fact amounts expended for the performance of rectification which had been the subject of Notices given to Architeriors.

60. It follows that assertions contained in ENI’s skeleton in support of this ground to the effect that the Court erred by imposing a requirement of strict proof of the service of each relevant Notice is based on a false assumption. The Judge did not make any observations with respect to “strict proof” but merely observed, correctly, that as the claim was based on clause 11.1 of the Contract, ENI was required to establish that the costs which it claimed were incurred as a result of Architeriors’ failure to perform work the subject of a Notice to Architeriors. After reviewing the evidence, the Judge was not satisfied that ENI had discharged its burden of proof in relation to this claim.

61. In the skeleton relating to this ground, ENI refers to the evidence to which the Judge referred – namely, that given by Mr Elsadig, Mr Clark, and Mr Corelj. However, it is clear that this evidence was considered by the Judge but was not sufficient to cause him to conclude that ENI had established that the work for which it claimed was in fact work which Architeriors had failed to perform.

62. As with the preceding grounds, the skeleton given in support of this ground concludes with a list of documents, seven of which are said to be “examples” of Notices given to Architeriors, and 25 of which are said to relate to the performance of rectification work. However, no attempt is made to link the documents relating to the performance of work said to be rectification work to any Notice given to Architeriors.

63. In other words, the reason the Judge rejected ENI’s claim was because of ENI’s failure to establish a connection between the costs for which ENI sought reimbursement and a Notice to Architeriors to perform rectification work. That failure has been perpetuated in the argument advanced in support of this ground of appeal.

64. As this ground of appeal is based upon a misconception of the reasons why ENI’s counterclaim failed and does not address those reasons in any meaningful way, it has no real prospect of success.

Ground 4

65. Ground 4 states:

66. Clause 4.9 of the Particular Conditions states:

67. After referring to the clause, the Judge noted that it suggested that there would be mutual agreement on a metering system for apportionment of responsibility for the use of services between Architeriors and others using those services.²² The Judge further found that the Tender Review Observations jointly agreed between the parties showed that the parties agreed only that payment for water used by Architeriors’ works was to be by Architeriors. That finding is consistent with an observation made by Mr Elsadig (albeit in somewhat obscure terms) in his second witness statement to the effect that “in the project’s early stages, both Parties mutually agreed that utility billing would adhere to the arrangement agreed by the Parties”. In any event, the Judge’s finding that there was an agreement, as contemplated by clause 4.19, to the effect that Architerior would only be responsible for paying for water used in the performance of its works has not been challenged.

68. The ground specifically relies upon the evidence of Mr Elsadig. However, the Judge specifically referred to that evidence in his reasons,²³ noting that his evidence was limited to the total charges incurred between January 2022 and June 2023 without any attempt at apportionment of those charges as between Architeriors and other users of the services provided.

69. The Judge further noted that no attempt was made to levy charges during the performance of the Contract, which he considered to be consistent with the agreement that Architeriors would only be charged for water which it used, and that there was no evidence that the amounts to which Mr Elsadig referred related to water used by Architeriors.

70. In other words, the Judge held that the parties agreed that Architeriors would only be responsible for water which it used in the performance of its works. Ground 4 does not challenge that finding but asserts that the Judge misconstrued clause 4.19. The basis for that assertion is not evident from the skeleton in support of the ground. The Judge’s finding that the clause suggested that there would be an agreement for apportionment as between different users of the services provided is explicit in the terms of clause 4.19.

71. Put another way, the proposition which underpins this ground is that Architeriors is responsible for all payments to DEWA irrespective of whether the payments related to services used by Architeriors and others. That proposition is inconsistent with clause 4.19 which provides for apportionment in the event that services are used by others. The Judge found that there was an agreement for apportionment, and that finding has not been challenged by the Ground. However, the only evidence of the amounts claimed is evidence of the total amount charged by DEWA, without any apportionment as between users. There is no evidence to the effect that those charges relate only to services used by Architeriors.

72. Ground 4 is another ground which proceeds upon a misconception of the reasoning of the Judge. It has no real prospect of success.

Conclusion

73. As none of the proposed Grounds of Appeal has any real prospect of success, and it is not contended that there is any other compelling reason why permission to appeal should be granted, the Renewed Application must be dismissed.

Costs

74. Architeriors has foreshadowed an application for indemnity costs for reasons which include various grounds, including the assertion that ENI should have known that the grounds upon which it relied had no real prospect of success.

75. I have found that none of the Grounds had any real prospect of success and that the argument advanced in support of the Grounds lacked cogency in a number of instances. However, in my view indemnity costs should be reserved for cases of conduct which merits sanction or admonition and this case falls short of meeting that standard, although only by a narrow margin. Accordingly, costs will be ordered on the standard basis.