AL KHORAFI v BANK SARASIN-ALPEN [2019] DIFC CA 010 — Consent order regarding cost payment deadlines (02 April 2019)

This consent order formalizes a procedural extension granted by the DIFC Court of Appeal, allowing the Claimants additional time to settle outstanding legal costs owed to the Second Defendant following previous litigation in CFI-014-2016.

What specific cost-related dispute between Rafed Abdel Mohsen Bader Al Khorafi and Bank J. Safra Sarasin necessitated the CA-010-2018 consent order?

The dispute arises from the underlying litigation in CFI-014-2016, where the Claimants—Rafed Abdel Mohsen Bader Al Khorafi, Amrah Ali Abdel Latif Al Hamad, and Alia Mohamed Sulaiman Al Rifai—were ordered to pay the legal costs of the Second Defendant, Bank J. Safra Sarasin Limited. The current proceedings under CA-010-2018 represent the procedural enforcement phase of that cost order, specifically addressing the timeline for satisfaction of those financial obligations.

The parties reached a consensus to extend the deadline originally set by the Court of Appeal on 28 January 2019. The core of the dispute at this stage is not the liability for costs itself, but the administrative timeline for quantifying and settling those amounts. The order provides a structured mechanism for the parties to reach a private agreement on the quantum of costs, failing which the Court will intervene. As stated in the 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 Sunday 28 April 2019, unless another hearing is required."

Which judicial officer issued the CA-010-2018 consent order within the DIFC Court of Appeal?

The consent order was issued by Assistant Registrar Ayesha Bin Kalban on behalf of the DIFC Court of Appeal. The order was formally issued on 2 April 2019 at 9:00 am, following the agreement reached between the Claimants and the Defendants regarding the extension of time for the payment of costs arising from the earlier judgment in CFI-014-2016.

What were the respective positions of the Claimants and the Defendants regarding the timeline for cost settlement in CA-010-2018?

The parties, represented by their respective legal teams, adopted a collaborative stance by seeking a consent order rather than litigating the extension. The Claimants sought an extension of the time limit established in the Court of Appeal’s judgment dated 28 January 2019, likely due to the complexity of quantifying the costs associated with the substantial banking litigation in CFI-014-2016.

The Second Defendant, Bank J. Safra Sarasin Limited, consented to this extension, provided that a firm "drop-dead" date was established for the submission of written arguments should the parties fail to reach a mutual agreement on the quantum. By agreeing to this order, both sides avoided the necessity of a contested hearing, opting instead for a court-supervised deadline of 28 April 2019 to finalize the financial reconciliation of the litigation costs.

What is the precise doctrinal issue regarding the enforcement of cost orders that the Court addressed in CA-010-2018?

The Court was tasked with the procedural management of a court-ordered debt. The doctrinal issue centers on the Court’s supervisory jurisdiction over the enforcement of its own cost orders under the Rules of the DIFC Courts (RDC). Specifically, the Court had to determine the appropriate mechanism for resolving a disagreement on the quantum of costs when the parties have been granted an extension to negotiate privately.

The issue is whether the Court should allow parties the autonomy to settle costs via private negotiation while maintaining a strict, court-mandated deadline for judicial intervention. By setting a specific date (28 April 2019) for written submissions, the Court ensures that the enforcement process does not become indefinite, thereby balancing party autonomy with the Court's duty to ensure the finality of its judgments.

How did Assistant Registrar Ayesha Bin Kalban apply the principle of party autonomy in the context of the CA-010-2018 consent order?

The Assistant Registrar exercised the Court’s power to formalize an agreement between the parties, effectively converting a private settlement timeline into a binding court order. This reasoning reflects the DIFC Court’s preference for party-led resolution of ancillary matters such as costs, provided that the process remains within the Court's oversight.

The reasoning follows a two-step test: first, acknowledging the parties' mutual request for an extension; and second, imposing a clear, time-bound contingency plan to prevent further delays. The order explicitly mandates:

"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 Sunday 28 April 2019, unless another hearing is required."

This approach ensures that the Court remains the final arbiter of the costs while minimizing the judicial resources required to reach that point.

Which specific DIFC statutes and RDC rules govern the Court’s authority to issue consent orders for cost extensions?

The Court’s authority to issue this order is derived from the inherent jurisdiction of the DIFC Courts to manage their own proceedings and the specific provisions within the Rules of the DIFC Courts (RDC) regarding the assessment of costs. While the order does not cite specific RDC sections, it operates under the general framework of RDC Part 38, which governs the assessment of costs, and the Court’s broad case management powers under RDC Part 4. The Court of Appeal’s authority to amend its own previous orders is also rooted in the Judicial Authority Law (Dubai Law No. 12 of 2004, as amended).

How does the CA-010-2018 order interact with the previous judgment in CFI-014-2016?

The order in CA-010-2018 serves as an ancillary procedural instrument to the substantive judgment in CFI-014-2016. In the DIFC legal system, a judgment for costs is a distinct obligation that often requires subsequent quantification. The Court of Appeal used the CA-010-2018 order to modify the timeline established in its own 28 January 2019 judgment, ensuring that the enforcement of the CFI-014-2016 cost award remains consistent with the current status of the parties' negotiations. The order does not disturb the underlying liability established in the earlier case but provides the necessary procedural bridge to finalize the payment.

What was the final disposition of the CA-010-2018 application regarding the payment of costs and the allocation of legal fees for this specific order?

The Court granted the application for an extension of time by consent. The Claimants were granted until 28 April 2019 to either agree on the quantum of costs with the Second Defendant or submit written arguments to the Court for a ruling. Regarding the costs of the application itself, the Court ordered that there be "no order as to costs," meaning each party bears their own legal expenses incurred in securing this specific consent order.

What are the wider implications for practitioners regarding the enforcement of cost awards in the DIFC Court of Appeal?

This case highlights the importance of proactive case management in the DIFC. Practitioners should note that the Court of Appeal is willing to grant extensions for cost negotiations, but such extensions are almost always coupled with a "drop-dead" date for judicial intervention. Litigants must anticipate that if they cannot reach a private agreement on costs by the court-mandated deadline, they will be required to submit concise written arguments. This underscores the need for parties to maintain detailed records of their cost negotiations to ensure that, if the matter proceeds to a court ruling, the submissions are well-supported and ready for immediate review.

Where can I read the full judgment in Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin Alpen (ME) Limited [2019] DIFC CA 010?

The full text of the consent order can be accessed via the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/ca-0102018-rafed-abdel-mohsen-bader-al-khorafi-v-bank-sarasin-alpen-me-limited

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC)
• Dubai Law No. 12 of 2004 (Judicial Authority Law)