The Court of Appeal’s consent order in CA-010-2018 formalizes the procedural timeline for the finalization of costs following the underlying litigation between the Al Khorafi claimants and the Bank J. Safra Sarasin entities.
What was the specific dispute between Rafed Abdel Mohsen Bader Al Khorafi and Bank J. Safra Sarasin regarding the underlying CFI-014-2016 litigation?
The litigation involved a complex banking dispute initiated by Rafed Abdel Mohsen Bader Al Khorafi, Amrah Ali Abdel Latif Al Hamad, and Alia Mohamed Sulaiman Al Rifai against Bank Sarasin-Alpen (ME) Limited and Bank J. Safra Sarasin Limited. The dispute centered on allegations of financial mismanagement and breach of duty concerning investment portfolios managed by the defendants. The matter reached the Court of Appeal under case number CA-010-2018 following the initial proceedings in the Court of First Instance (CFI-014-2016).
The stakes involved the determination of liability and the subsequent allocation of legal costs. As noted in the Court’s order:
The Claimants shall pay the Second Defendant its costs in the matter CFI-014-2016, the amount of which is to be agreed between the parties. If no agreement is made, the Court will make any necessary ruling following the making of short submissions in writing by both parties by no later than 4pm on Wednesday 9 October 2019, unless another hearing is required.
The dispute at this stage transitioned from the merits of the banking claims to the quantification of the Second Defendant’s legal expenses, which the Claimants were ordered to satisfy.
Which bench and division of the DIFC Courts issued the consent order on 12 September 2019?
The order was issued by the DIFC Court of Appeal. The document was formally issued by Nour Hineidi, the Deputy Registrar, on 12 September 2019 at 4:00 PM. This administrative action facilitated the procedural requirements for the parties to finalize the costs assessment phase of the litigation without requiring a full bench hearing at that specific juncture.
What were the positions of the Claimants and the Second Defendant regarding the extension of time for costs assessment?
The parties reached a consensus to avoid further litigation over procedural deadlines. The Claimants, represented in the broader dispute, and the Second Defendant, Bank J. Safra Sarasin Limited, agreed that additional time was necessary to either reach a private settlement regarding the quantum of costs or to prepare the necessary documentation for a detailed assessment.
By seeking this consent order, the parties signaled a collaborative approach to the finalization of the CFI-014-2016 costs, effectively staying the immediate requirement for a court-led assessment while providing a hard deadline of 9 October 2019 for either agreement or written submissions. This avoided the need for the Court to intervene prematurely in the negotiation of legal fees.
What was the precise legal question the Court had to answer regarding the application of RDC 40.29 and 40.30?
The Court was required to determine whether it should grant a formal extension of time for the filing of a request for a detailed assessment hearing. The legal issue was whether the parties could, by mutual consent, override the standard procedural timelines set out in the Rules of the DIFC Courts (RDC) to allow for a negotiated settlement of costs. The Court had to ensure that the extension complied with the procedural framework governing cost assessments to prevent the matter from becoming stale or procedurally barred.
How did the Deputy Registrar apply the procedural test for extending time limits under the RDC?
The Deputy Registrar exercised the Court’s authority to manage the case timeline by formalizing the agreement reached between the parties. The reasoning relied on the principle of party autonomy in procedural matters, provided that the extension did not prejudice the Court’s ability to manage its docket. The Court accepted the parties' joint request to push the deadline for the detailed assessment hearing to 9 October 2019.
The order explicitly referenced the governing rules:
The Parties also agree that the deadline for filing a request for a detailed assessment hearing is extended to 4pm on Wednesday 9 October 2019, in accordance with RDC 40.29-40.30.
By invoking RDC 40.29 and 40.30, the Court ensured that the extension was anchored in the specific rules governing the assessment of costs, thereby maintaining the integrity of the litigation process while accommodating the parties' need for further negotiation.
Which specific RDC rules and previous judgments were referenced in the 12 September 2019 order?
The order specifically cited RDC 40.29 and 40.30, which govern the procedure for detailed assessment of costs in the DIFC Courts. These rules dictate the requirements for a party to request a hearing when costs cannot be agreed upon between the parties. Additionally, the order referenced the Court of Appeal’s own judgment dated 28 January 2019, which served as the foundational authority for the Claimants' obligation to pay the Second Defendant’s costs.
How did the Court of Appeal use the 28 January 2019 judgment to frame the current costs order?
The 28 January 2019 judgment established the liability of the Claimants for the Second Defendant’s costs in CFI-014-2016. The Court of Appeal used this prior ruling as the "anchor" for the current consent order, ensuring that the procedural extension did not alter the substantive liability established in the earlier appeal. By referencing the judgment, the Court ensured that the current order was merely a procedural mechanism to fulfill the earlier mandate of the Court.
What was the final disposition and the specific relief granted by the Court of Appeal?
The Court granted the consent order as requested by the parties. The disposition included:
1. An extension of the time limit for the Claimants to pay the Second Defendant’s costs.
2. A deadline of 4:00 PM on 9 October 2019 for the parties to either agree on the costs or submit written arguments to the Court.
3. An extension of the deadline for filing a request for a detailed assessment hearing to 4:00 PM on 9 October 2019.
4. No order as to costs for the application itself.
What are the practical implications for litigants seeking to extend costs assessment deadlines in the DIFC?
Litigants should note that the DIFC Courts are amenable to consent orders regarding procedural deadlines, provided the parties are aligned and the request is made within the framework of the RDC. The use of RDC 40.29 and 40.30 in this case demonstrates that parties are expected to utilize the time between the judgment on liability and the costs assessment to reach a settlement. Failure to reach an agreement by the court-ordered deadline necessitates written submissions, which the Court will then use to make a ruling, potentially avoiding the need for a full, costly detailed assessment hearing.
Where can I read the full judgment in Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen [2019] DIFC CA 010?
The full text of the consent order can be accessed via the DIFC Courts website:
https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/ca-0102018-1-rafed-abdel-mohsen-bader-al-khorafi-2-amrah-ali-abdel-latif-al-hamad-3-alia-mohamed-sulaiman-al-rifai-v-1-bank-sara
Digital copy:
https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-appeal/DIFC_COA_CA_010_2018_1_Rafed_Abdel_Mohsen_Bader_Al_Khorafi_2_Amrah_Ali_Abdel_Latif_Al_20190912.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen | CFI-014-2016 | Underlying litigation for which costs were assessed. |
| Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen | CA 010/2018 (Judgment dated 28 January 2019) | Established the liability for costs. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 40.29
- Rules of the DIFC Courts (RDC) 40.30