This consent order formalizes an extension of time for the Claimants to settle outstanding costs obligations owed to the Second Defendant, Bank J. Safra Sarasin Limited, following previous litigation in the Court of First Instance.
What is the specific nature of the cost dispute between Rafed Abdel Mohsen Bader Al Khorafi and Bank J. Safra Sarasin Limited in CA-010-2018?
The dispute concerns the procedural management of costs arising from the underlying litigation in CFI-014-2016. The Claimants—Rafed Abdel Mohsen Bader Al Khorafi, Amrah Ali Abdel Latif Al Hamad, and Alia Mohamed Sulaiman Al Rifai—were previously ordered to pay the costs of the Second Defendant, Bank J. Safra Sarasin Limited. The current matter before the Court of Appeal serves to facilitate the finalization of these payments through a structured extension of time.
The core of the dispute involves the transition from the substantive judgment to the enforcement of cost orders. Because the parties have not yet reached a mutual agreement on the quantum of costs, the Court has provided a window for the parties to either settle the amount privately or submit written arguments for judicial determination. This ensures that the litigation, which has spanned several years, moves toward a definitive conclusion regarding the financial liabilities of the Claimants.
Which judges presided over the Court of Appeal order issued on 5 May 2019 in CA-010-2018?
The Consent Order was issued by Assistant Registrar Ayesha Bin Kalban on behalf of the DIFC Court of Appeal. While the order references the substantive judgment of the Court of Appeal dated 28 January 2019, the procedural extension itself was formalized on 5 May 2019 to ensure compliance with the Rules of the DIFC Courts (RDC) regarding the assessment of costs.
What positions did the Claimants and Bank J. Safra Sarasin Limited take regarding the timeline for cost assessment?
The parties, recognizing the complexity of the costs assessment process, reached a consensus to avoid further litigation over procedural deadlines. The Claimants sought additional time to finalize the payment of costs to the Second Defendant, while Bank J. Safra Sarasin Limited agreed to this extension to facilitate a potential out-of-court settlement. By opting for a consent order, both sides effectively bypassed the need for a contested hearing on procedural timelines, demonstrating a mutual desire to resolve the financial aspects of the litigation efficiently.
The legal arguments advanced by the parties focused on the practicalities of complying with the Court’s previous directions. Rather than litigating the merits of the costs themselves, the parties focused on the administrative requirements of RDC 40.30, which governs the detailed assessment of costs. The agreement reflects a pragmatic approach to the final stages of the dispute, allowing the parties to focus their resources on the quantum of the costs rather than procedural skirmishes.
What was the precise legal question the Court of Appeal had to address regarding the RDC 40.30 deadline?
The Court was required to determine whether it should grant a formal extension of time for the Claimants to file a request for a detailed assessment hearing, as prescribed by the Rules of the DIFC Courts. The primary doctrinal issue was the court's discretion to manage its own timetable when parties have failed to reach an agreement on costs within the timeframe originally stipulated in the Court of Appeal’s judgment of 28 January 2019.
The Court had to balance the need for procedural finality with the parties' request for a reasonable extension to resolve the outstanding financial obligations. By addressing this, the Court ensured that the enforcement of the costs order remained consistent with the RDC, while providing the parties with a clear, court-sanctioned deadline to either reach an agreement or submit their written arguments for a final ruling.
How did the Court of Appeal apply its discretionary powers to extend the deadline for the detailed assessment hearing?
The Court exercised its authority to manage the litigation timeline by formalizing the agreement reached between the parties. By issuing the consent order, the Court provided a clear, enforceable deadline for the parties to resolve the costs issue, thereby preventing further delays in the finalization of the case. The reasoning was predicated on the parties' mutual agreement, which the Court adopted to ensure procedural compliance.
The Court specifically addressed the requirements of the RDC regarding the assessment of costs, noting:
The Parties also agree that the time for filing a request for a detailed assessment hearing as set out at RDC 40.30 is extended to 4pm on Tuesday 28 May 2019.
This approach reflects the Court’s preference for party-led resolution in procedural matters, provided that such resolutions are formalized through the Court’s registry to maintain the integrity of the judicial record.
Which specific RDC rules and previous judgments were cited in the CA-010-2018 order?
The order explicitly references RDC 40.30, which dictates the procedure for requesting a detailed assessment of costs. This rule is central to the DIFC Court’s framework for ensuring that costs are assessed fairly and transparently when parties cannot agree on the amount.
Furthermore, the order is intrinsically linked to the previous judgment in MR RAFED ABDEL MOHSEN BADER AL KHORAFI v BANK SARASIN ALPEN [2018] DIFC CFI 014 — Abuse of process and time-bar in banking litigation (18 April 2018). This earlier decision established the liability for costs that the current Court of Appeal order seeks to quantify and enforce. The Court of Appeal’s reference to the 28 January 2019 judgment further anchors this procedural order within the broader history of the litigation.
How did the Court use the precedent of CFI-014-2016 in the current order?
The Court utilized the judgment in CFI-014-2016 as the foundational authority for the Second Defendant’s entitlement to costs. By referencing this case, the Court of Appeal ensured that the current procedural extension remained tethered to the substantive findings of the Court of First Instance. The Court of Appeal did not revisit the merits of the costs award itself, but rather used the previous ruling as the basis for the current enforcement timeline.
This reliance on the earlier judgment demonstrates the Court’s commitment to consistency across the various stages of the litigation. By linking the current extension to the specific obligations set out in the 28 January 2019 judgment, the Court provided a clear roadmap for the parties to follow, ensuring that the transition from substantive judgment to cost assessment was handled with procedural rigor.
What was the final outcome and relief granted by the Court of Appeal in this consent order?
The Court of Appeal granted the extension of time requested by the parties, setting a firm deadline of 4pm on Tuesday, 28 May 2019, for the filing of a request for a detailed assessment hearing. Additionally, the Court ordered that the Claimants must pay the Second Defendant’s costs in the matter of CFI-014-2016. If the parties fail to reach an agreement on the quantum of these costs by the specified date, they are required to submit written arguments to the Court for a final ruling. The Court made no order as to the costs of the current application, meaning each party bears their own costs for this specific procedural motion.
What are the wider implications for DIFC practitioners regarding the management of cost assessments?
This case serves as a reminder to practitioners that procedural deadlines, particularly those related to cost assessments under RDC 40.30, are strictly monitored by the DIFC Courts. Even when parties are in the process of negotiating a settlement, they must ensure that any extensions of time are formalized through a consent order. Failure to do so could result in the loss of the right to request a detailed assessment, potentially prejudicing a party’s ability to recover or challenge costs.
Practitioners should anticipate that the Court will favor party-led resolutions but will require strict adherence to the timelines set out in such consent orders. The case highlights the importance of proactive communication between parties and the Court to avoid unnecessary hearings, especially when the substantive issues of the litigation have already been decided.
Where can I read the full judgment in MR RAFED ABDEL MOHSEN BADER AL KHORAFI v BANK SARASIN ALPEN [2019] DIFC CA 010?
The full judgment 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-1 and the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-appeal/DIFC_COA_CA_010_2018_Rafed_Abdel_Mohsen_Bader_Al_Khorafi_v_Bank_Sarasin_Alpen_ME_Limite_20190505.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| MR RAFED ABDEL MOHSEN BADER AL KHORAFI v BANK SARASIN ALPEN | [2018] DIFC CFI 014 | Established the underlying liability for costs. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 40.30