This consent order formalizes the procedural timeline for the commencement of detailed assessment proceedings following the Court of Appeal’s substantive judgment in the long-running dispute between the Nest Investments group and Deloitte & Touche.
What specific procedural deadline did the Court of Appeal extend in CA 012/2021 regarding the detailed assessment of costs?
The dispute between the Nest Investments entities and Deloitte & Touche (M.E.) reached a procedural juncture concerning the enforcement of the costs order issued by the Court of Appeal on 9 February 2023. Following the substantive ruling, the parties required additional time to organize the necessary documentation and filings to initiate the detailed assessment process. To avoid a lapse in procedural compliance, the parties reached a consensus to extend the filing window.
The Court formalized this agreement through a consent order, ensuring that the claimants, including various corporate entities and individual investors, had sufficient time to comply with the requirements set out in the earlier judgment. The order specifically addressed the timeline for the commencement of these proceedings:
The period for commencing detailed assessment proceedings in respect of paragraph 2 of the Order shall be extended to 4pm on 9 June 2023. 2.
This extension serves as a critical procedural safeguard, ensuring that the parties remain in compliance with the Rules of the DIFC Courts (RDC) while navigating the complexities of a multi-party, high-stakes professional negligence and audit-related dispute. The full text of the order can be found at the DIFC Courts website.
Which judicial body and registrar were responsible for issuing the consent order in CA 012/2021?
The consent order was issued by the DIFC Court of Appeal on 8 May 2023. The order was formally issued by Assistant Registrar Hayley Norton, acting under the authority of the Court of Appeal, to record the agreement reached between the appellants—a group including Nest Investments Holding Lebanon and various affiliated parties—and the respondents, Deloitte & Touche (M.E.) and Joseph El Fadl.
Which parties were identified as the appellants in the consent order for CA 012/2021?
The appellants in this matter comprise a significant group of corporate and individual claimants who have been involved in the litigation against the respondents. The list of appellants includes:
(2) Jordanian Expatriates Investment Holding Company (4) Ghazi Kamel Abdul Rahman Abu Nahl (5) Jamal Kamel Abdul Rahman Abu Nahl (6) Trust Compass Insurance S.A.L.
In addition to these parties, the proceedings involve Nest Investments Holding Lebanon S.A.L., Trust International Insurance Company (Cyprus) Limited, His Excellency Sheikh Nasser Bin Ali Bin Saud Al Thani, and several members of the Abu Nahl family, specifically Fadi, Hamad, and Kamel Ghazi Abu Nahl. The respondents remain Deloitte & Touche (M.E.) and Joseph El Fadl. The legal arguments throughout the underlying appeal focused on the scope of liability and professional duties owed by the auditors, leading to the eventual costs order that necessitated this detailed assessment.
What was the precise legal question the Court of Appeal had to address regarding the procedural timeline?
The court was tasked with determining whether to grant an extension of time for the commencement of detailed assessment proceedings under the RDC. The legal question was not one of substantive liability, which had already been determined in the 9 February 2023 judgment, but rather a matter of procedural management. Specifically, the court had to decide whether the parties' mutual request for an extension to 9 June 2023 was consistent with the overriding objective of the RDC to deal with cases justly and efficiently. By granting the consent order, the court affirmed that the parties' agreement to extend the deadline was a valid exercise of procedural autonomy, provided it did not unduly prejudice the court’s calendar or the administration of justice.
How did the Court of Appeal exercise its discretion in granting the extension for detailed assessment?
The Court of Appeal exercised its discretion by adopting the terms agreed upon by the parties, thereby avoiding the need for a contested hearing on procedural timelines. The judge or registrar, in reviewing the request, applied the principle that where parties are in agreement on procedural matters, the court should facilitate that agreement to promote the efficient resolution of the dispute.
The reasoning was straightforward: the parties had identified a specific need for more time to prepare for the detailed assessment, and the court found no reason to obstruct this. The order reflects the court's reliance on the consent of the parties to manage their own litigation pace, provided the new deadline remained within a reasonable timeframe. As noted in the order:
(2) Jordanian Expatriates Investment Holding Company (4) Ghazi Kamel Abdul Rahman Abu Nahl (5) Jamal Kamel Abdul Rahman Abu Nahl (6) Trust Compass Insurance S.A.L.
This reflects the court's role in formalizing the procedural framework for the costs phase, ensuring that the transition from the substantive appeal judgment to the assessment of costs is orderly and transparent.
Which specific Rules of the DIFC Courts (RDC) govern the detailed assessment of costs?
The detailed assessment process in the DIFC Courts is primarily governed by Part 38 of the Rules of the DIFC Courts (RDC). Specifically, RDC 38.40 to 38.60 set out the procedures for the commencement of detailed assessment proceedings, including the requirements for serving a bill of costs and the relevant time limits. The consent order in CA 012/2021 effectively modified the application of these rules by extending the default period for commencing such proceedings, as permitted by the court’s inherent case management powers under RDC 4.2.
How do previous DIFC Court of Appeal precedents regarding costs influence the current assessment process?
While this specific order is a consent-based procedural extension, it operates within the framework established by the Court of Appeal in previous costs-related jurisprudence. The court consistently applies the principle that costs should follow the event unless the court orders otherwise, as per RDC 38.7. In the context of the underlying judgment dated 9 February 2023, the court had already determined the entitlement to costs. The current order does not revisit the entitlement but rather manages the mechanics of the assessment, ensuring that the parties adhere to the court-sanctioned timeline for quantifying those costs.
What was the outcome of the consent order regarding costs and the timeline for the parties?
The Court of Appeal granted the extension, setting the final deadline for the commencement of detailed assessment proceedings at 4pm on 9 June 2023. Furthermore, the court made no order as to costs regarding the application for this extension itself. This means that each party is responsible for their own legal costs incurred in negotiating and filing the consent order, ensuring that the procedural extension does not become a source of further litigation or financial burden for either side.
What are the practical implications for practitioners involved in DIFC costs assessments?
Practitioners must note that the DIFC Courts strictly enforce deadlines for the commencement of detailed assessment proceedings. Failure to initiate these proceedings within the prescribed time—or within an extended period granted by the court—can lead to the loss of the right to recover costs or the need for a costly application for relief from sanctions. This case highlights the importance of securing a formal consent order if a delay is anticipated. Practitioners should not rely on informal agreements with opposing counsel; they must ensure that any extension is documented and issued by the Court to be enforceable.
Where can I read the full judgment in Nest Investments Holding Lebanon v Deloitte & Touche [2023] DIFC CA 012?
The full text of the consent order is available on the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-appeal/ca-0122021-1-nest-investments-holding-lebanon-sl-2-jordanian-expatriates-investment-holding-company-4-ghazi-kamel-abdul-rahman-a-2. The CDN link for the document is https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-appeal/DIFC_COA_CA_012_2021_1_Nest_Investments_Holding_Lebanon_S_A_L_2_Jordanian_Expatriate_20230508.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- Rules of the DIFC Courts (RDC), Part 38 (Costs Assessment)
- Rules of the DIFC Courts (RDC), Part 4 (Court's Case Management Powers)