SAIF SAEED SULAIMAN MOHAMMAD AL MAZROUEI v BANKMED [2019] DIFC CA 011 — Appeal against immediate judgment for alleged forgery (02 January 2020)

This Court of Appeal judgment clarifies the evidentiary threshold required to resist summary judgment when a defendant raises a late-stage allegation of forgery regarding a personal guarantee.

What was the specific monetary stake and the nature of the dispute in Saif Saeed Sulaiman Mohammad Al Mazrouei v Bankmed?

The dispute arose from a default on a USD 15,000,000 facility agreement granted by the Respondent, Bankmed, to Fast Telecom General Trading LLC. Following the borrower's default, the bank sought to enforce personal guarantees against several defendants, including the Appellant, Saif Saeed Sulaiman Mohammad Al Mazrouei. The Appellant was alleged to have executed a First Demand Limited Personal Guarantee on 21 November 2016.

The litigation reached a critical juncture when the Respondent sought immediate judgment for the outstanding loan balance. As noted in the judgment:

Justice Omar Al Muhairi in his aforementionedOrder and the Appellant was ordered to pay to the Respondent the amount of USD 14,463,479.03(Fourteen Million Four Hundred and Sixty-Three Thousand Four Hundred and Seventy-Nine USD and Three Cents)in satisfaction of the claim as well as pre-judgment interest on the sum, being until that date USD 3,866,100(ThreeMillion, EightHundred and Sixty-Six Thousand and One Hundred USD), and costs of the application and proceedings.

The core of the dispute centered on the Appellant’s contention that his signature on the guarantee was forged, a claim he raised to avoid the immediate judgment granted by the Court of First Instance.

Which judges presided over the Court of Appeal hearing in CA 011/2019?

The appeal was heard by a panel of the DIFC Court of Appeal consisting of Chief Justice Zaki Azmi, H.E. Justice Ali Al Madhani, and H.E. Justice Shamlan Al Sawalehi. The hearing took place on 11 November 2019, with the final judgment issued on 2 January 2020.

What were the primary legal arguments advanced by Mr Michael Patchett-Joyce and Mr Mazen Boustany?

Mr Michael Patchett-Joyce, representing the Appellant, argued that the Court of First Instance erred in granting immediate judgment because there was a triable issue regarding the authenticity of the Appellant's signature on the guarantee. He contended that the allegation of forgery provided a sufficient basis to set aside the judgment and proceed to a full trial.

Conversely, Mr Mazen Boustany, for the Respondent, argued that the forgery allegation was a late-stage, unsubstantiated assertion. He maintained that the Appellant had failed to plead the forgery defense properly in his initial statement of defense and had failed to provide any expert evidence or credible documentation to support the claim, despite ample opportunity to do so. The Respondent asserted that the Appellant’s conduct was a tactical delay rather than a genuine defense.

What was the precise doctrinal issue regarding the threshold for summary judgment that the Court of Appeal had to resolve?

The Court had to determine whether the Appellant’s unsubstantiated allegation of forgery met the "real prospect of success" test required to defeat an application for immediate judgment under the Rules of the DIFC Courts (RDC). Specifically, the Court addressed whether a party can avoid summary judgment by merely asserting forgery without providing supporting evidence, such as handwriting analysis, and whether the lower court’s refusal to treat this assertion as a triable issue constituted a legal error.

How did Chief Justice Zaki Azmi apply the test for immediate judgment to the Appellant’s forgery claim?

Chief Justice Zaki Azmi emphasized that the Court must evaluate whether a defense is "realistic" rather than merely arguable. The Court found that the Appellant’s failure to substantiate the forgery claim rendered it insufficient to overcome the Respondent’s evidence. The Court’s reasoning focused on the procedural history, noting that the allegation was not raised in the initial pleadings.

In reaching its conclusion the court must not conduct a “mini-trial”

The Court concluded that the Appellant’s failure to provide expert evidence, despite being advised to do so, meant the defense lacked the necessary conviction to proceed to trial. The Court held:

I do not find this allegation to be credible. Consequently, I cannot accept it.

Which specific RDC rules and legal standards governed the Court’s decision on the appeal?

The Court relied heavily on the RDC provisions regarding immediate judgment and the criteria for granting permission to appeal. The Court cited:

Under RDC 44.8, permission to appeal may be given only where: (1)the Court considers that the appeal would have a real prospect of success; or(2) there is some other compelling reason why the appeal should be heard.

Furthermore, the Court applied the established test for immediate judgment, which allows for such an order if the Court considers that a party has no real prospect of succeeding or defending the claim and there is no compelling reason for a trial.

How did the Court of Appeal utilize English and DIFC precedents to define the scope of summary judgment?

The Court referenced several English authorities to frame the summary judgment test. Swain v Hillman [2001] 2 All ER 91 was used to define the "real prospect of success" standard. ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 and Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550 were cited to clarify the court's role in avoiding "mini-trials" while still ensuring that defenses are more than merely arguable. Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63 and Wrexham Association Football Club Ltd v Crucialmove Ltd [2006] EWCA Civ 237 were utilized to reinforce the principle that a defense must carry a degree of conviction to survive an immediate judgment application.

What was the final outcome of the appeal and the orders regarding costs?

The Court of Appeal dismissed the appeal in its entirety. The Appellant was ordered to pay the Respondent’s costs, with the provision that such costs are to be assessed by a Registrar if the parties cannot reach an agreement. The immediate judgment for USD 14,463,479.03 plus interest remained in full force.

What are the practical implications for litigants raising forgery defenses in the DIFC?

This judgment serves as a warning that serious allegations, such as forgery, must be pleaded clearly and supported by evidence at the earliest possible stage. Litigants cannot rely on bare assertions to defeat summary judgment applications. The decision reinforces that the DIFC Courts will not allow the "no mini-trial" rule to be used as a shield for parties who fail to substantiate their defenses with expert evidence or timely pleadings. Future litigants must anticipate that the Court will scrutinize the credibility of such claims and may dismiss them if they are not backed by concrete proof.

Where can I read the full judgment in Saif Saeed Sulaiman Mohammad Al Mazrouei v Bankmed [2019] DIFC CA 011?

The full judgment is available on the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/saif-saeed-sulaiman-mohammad-al-mazrouei-v-bankmed-sal-trading-difc-under-trade-name-bankmed-dubai-2019-difc-ca-011

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC) 44.8
• Arbitration Law Article 13(1)