ASHOK KUMAR GOEL v CREDIT SUISSE [2021] DIFC CA 002 — Judgment on costs and discharge of stay orders (21 September 2021)

Following the dismissal of the Appellants' jurisdictional challenge, the Court of Appeal clarifies the procedural path for the concurrent assessment of multiple costs orders and the discharge of stay orders in complex banking litigation.

What was the specific dispute regarding the assessment of costs between Ashok Kumar Goel and Credit Suisse (Switzerland) Limited?

The dispute centered on the procedural mechanism for recovering legal costs following the dismissal of the Appellants' appeal against a jurisdictional ruling in CFI-066-2020. Credit Suisse (Switzerland) Limited sought a consolidated costs order to streamline the recovery of expenses incurred across multiple stages of the litigation, including the initial jurisdiction application, a stay application, and the subsequent appeal. The Appellants resisted this, arguing that the costs claimed by the Bank were disproportionate and that the calculation methods employed were erroneous.

The complexity arose from the existence of prior Registrar orders and the need to reconcile these with the costs of the appeal itself. As noted in the court records:

The Respondent Bank served its Schedule of Costs pertaining to the Jurisdiction Costs Order by email dated October 2020 seeking payment of USD 96,891, latest by 12 October 2020.

The Bank’s application for a consolidated order was intended to avoid the inefficiency of separate, fragmented assessments, but the Appellants challenged the quantum, labeling the claims as "exorbitant." The court had to determine whether to grant the consolidation or, alternatively, to facilitate a more practical concurrent assessment process.

Which judges presided over the Court of Appeal in the matter of Ashok Kumar Goel v Credit Suisse (Switzerland) Limited?

The judgment was delivered by a panel of the DIFC Court of Appeal comprising Chief Justice Zaki Azmi, H.E. Justice Shamlan Al Sawalehi, and Justice Robert French. The order was issued on 21 September 2021, following the Court’s earlier dismissal of the substantive appeal on 26 April 2021.

What were the primary arguments advanced by the Appellants and the Respondent Bank regarding the recovery of costs?

The Respondent Bank, Credit Suisse, argued for a consolidated costs order to simplify the recovery process, requesting that the court assess costs summarily under RDC 38.28 rather than through a protracted detailed assessment. They maintained that their costs were reasonable and sought recovery for expenses incurred even prior to the formal commencement of proceedings, relying on RDC 38.10(4).

Conversely, the Appellants, Ashok Kumar Goel and others, contended that the Bank’s claims were excessive. They specifically challenged the Bank’s calculation of costs related to the Worldwide Freezing Order (WWFO), arguing that the Bank had erroneously included costs outside the scope of the specific jurisdiction and stay orders. As the court noted:

(p) The costs claimed by the Respondent Bank in its application dated 30 December 2020 (Assessment of Costs – Jurisdiction Application) were said to be exorbitant and not proportionate.

The Appellants further argued that the Bank’s attempt to consolidate these costs was an attempt to bypass the standard scrutiny required for detailed assessments, particularly regarding the costs incurred in related proceedings such as CA-008-2020.

What was the precise doctrinal question the Court of Appeal had to resolve regarding the consolidation of costs orders?

The court was tasked with determining whether it possessed the procedural authority to consolidate multiple, pre-existing costs orders—which were currently subject to a stay—into a single, unified assessment, or whether it should instead order a concurrent assessment by the Registrar. The doctrinal issue involved the balance between the court’s inherent power to manage its own process for efficiency and the rights of the parties to have costs assessed according to the specific rules governing each individual order. The court had to decide if consolidation was "appropriate or just" under RDC 44.108(6) or if such an order would prejudice the Appellants' ability to challenge specific items within the various schedules.

How did the Court of Appeal apply the test for concurrent assessment of costs?

The Court of Appeal exercised its discretion to reject the Bank's request for a fully consolidated order, opting instead for a more pragmatic approach that allowed for concurrent assessment. The court reasoned that while it had the power to make a different order than the standard, it was more practical to have the Registrar assess the outstanding costs from the Jurisdiction and Stay applications alongside the appeal costs.

The court’s reasoning was grounded in the need for efficiency without sacrificing the integrity of the assessment process. As stated in the judgment:

(d) Costs to be assessed under outstanding costs orders in relation to the Appellants’ Jurisdiction Application and the Appellants’ Stay Application should, so far as practical, be assessed concurrently by the Registrar with the costs of this appeal and on a standard basis.

By ordering concurrent assessment, the court ensured that the Registrar could manage the various schedules of costs efficiently while still allowing the Appellants the opportunity to contest specific items, thereby addressing the concerns regarding the proportionality of the Bank’s claims.

Which RDC rules were central to the Court’s determination on costs assessment?

The Court relied heavily on Part 38 of the Rules of the DIFC Courts (RDC), specifically RDC 38.7(1), which establishes the general principle that the unsuccessful party pays the costs of the successful party. The Court also referenced RDC 38.28 regarding summary assessment and RDC 38.10(4), which allows for the recovery of costs incurred before proceedings have formally begun.

Regarding the Court of Appeal's specific powers, the panel cited RDC 44.108, which grants the court the authority to make any order it considers "appropriate or just." The court also addressed the Appellants' concerns regarding the scope of costs, referencing the specific procedural history of the case:

(e) Paragraph 20 — The Respondent Bank seeks its costs from 16 July 2020 pursuant to RDC 38.10(4) which outlines that costs incurred before proceedings have begun may be awarded by the Court.

How did the Court of Appeal utilize the cited DIFC precedents in its costs ruling?

The Court of Appeal utilized its previous rulings in CFI-066-2020 and CA-008-2020 to define the scope of the costs to be assessed. The court acknowledged that the costs incurred in the WWFO proceedings (CA-008-2020) were distinct from the jurisdiction costs, and therefore, it was necessary to ensure that the Registrar did not conflate these separate heads of damage during the assessment process.

The court noted the complexity of the costs landscape:

(c) Other resultant costs were incurred by the Respondent Bank as a result of applying for, obtaining and continuing the WWFO including in respect of the proceedings in CFI-066-2020 outside of the scope of the Jurisdiction Costs Order and the Stay Costs Order and the costs incurred in the appeal in CA-008-2020.

By explicitly distinguishing these proceedings, the court provided the Registrar with the necessary guidance to prevent the "exorbitant" claims alleged by the Appellants from being improperly bundled into the standard assessment.

What was the final disposition and the specific orders made by the Court of Appeal?

The Court of Appeal dismissed the Respondent Bank’s application for a consolidated costs order, finding that a formal consolidation was not the most effective path forward. However, it ruled in favor of the Bank regarding the underlying liability for costs. The Appellants were ordered to pay the costs of the appeal on a standard basis.

Crucially, the Court ordered the discharge of all existing stay orders that had been in effect regarding the Jurisdiction Costs Order and the Stay Costs Order. The Registrar was directed to assess the outstanding costs from the Jurisdiction and Stay applications concurrently with the costs of the appeal. Each party was ordered to bear its own costs regarding the 14 June 2021 application for consolidation.

What are the practical implications for DIFC practitioners regarding the assessment of costs in multi-stage litigation?

This decision reinforces that while the DIFC Courts favor efficiency, they will not necessarily grant a "consolidated" costs order if it risks obscuring the distinction between costs incurred in different stages of litigation. Practitioners should anticipate that the Court will prefer "concurrent assessment" by the Registrar, which allows for the simultaneous handling of multiple costs schedules without merging them into a single, potentially confusing, order.

Litigants must be prepared to provide granular breakdowns of costs, particularly when those costs span multiple CFI and Court of Appeal proceedings. The case serves as a warning that attempts to recover costs from pre-proceeding stages (under RDC 38.10(4)) or from related freezing order applications will be subject to rigorous scrutiny if challenged as "exorbitant." Practitioners should ensure that their schedules of costs are clearly demarcated by the specific order or application to which they relate to avoid the procedural delays seen here.

Where can I read the full judgment in Ashok Kumar Goel v Credit Suisse (Switzerland) Limited [2021] DIFC CA 002?

The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/1-ashok-kumar-goel-2-sudhir-goyel-3-manan-goel-4-prerit-goel-v-credit-suisse-switzerland-limited-2021-difc-ca-002-1

Cases referred to in this judgment

Legislation referenced

• RDC 1.6 (Court’s duty to manage cases)
• RDC 36.45 (General powers of the court)
• RDC 38.7(1) (General rule on costs)
• RDC 38.10(4) (Costs incurred before proceedings)
• RDC 38.28 (Summary assessment)
• RDC 39 (Fixed costs)
• RDC 44.108 (Powers of the Court of Appeal)