This order marks the formal conclusion of specific ancillary litigation within the broader KBC Aldini Capital dispute, reflecting the procedural mechanics of discontinuance under the Rules of the DIFC Courts (RDC).
What specific claim was terminated by the order of Justice Ayesha Bin Kalban in CFI 002/2017 on 5 February 2019?
The lawsuit, which originated as a claim by KBC Aldini Capital Limited against David Baazov and various Canaccord Genuity entities, evolved into a complex web of Part 21 proceedings. The specific dispute addressed by this order concerned the claim brought by the First Defendant, David Baazov, against the Second Part 21 Defendant, Ferdyne Advisory Inc. This ancillary claim had been filed on 29 November 2018.
The order serves to finalize the removal of this specific cross-claim from the Court’s active docket. As noted in the procedural history of this case: "The First Defendant’s claim against the Second Defendant filed on 29 November 2018 is discontinued with no order as to costs." This action effectively isolates the remaining primary claims from the ancillary litigation involving Ferdyne Advisory Inc. For context on the earlier procedural hurdles faced by the parties in this matter, see KBC ALDINI CAPITAL v DAVID BAAZOV [2017] DIFC CFI 002 — Procedural limitations on default judgment (12 February 2017).
Which judge presided over the discontinuance of the Part 21 claim in the DIFC Court of First Instance?
The order was issued by Assistant Registrar Ayesha Bin Kalban, sitting in the DIFC Court of First Instance. The document was formally issued on 5 February 2019 at 10:00 am, following the receipt of a Notice of Discontinuance filed by the First Defendant on 4 February 2019.
What were the procedural positions of David Baazov and Ferdyne Advisory Inc. leading to the 5 February 2019 order?
The First Defendant, David Baazov, initiated the Part 21 claim against Ferdyne Advisory Inc. on 29 November 2018. However, the litigation landscape shifted when the First Defendant sought to withdraw these allegations. The procedural mechanism employed was a Notice of Discontinuance, which was served by the First Defendant on 4 February 2019.
The Second Part 21 Defendant, Ferdyne Advisory Inc., acknowledged this shift, and the Court’s order confirms that the Second Defendant had also served a Notice of Discontinuance on all parties. This alignment of procedural filings indicates a mutual or unilateral decision to cease the specific ancillary litigation without requiring a contested hearing on the merits of the Part 21 claim.
What was the precise jurisdictional and procedural question before the Court regarding the Part 21 claim?
The Court was tasked with formalizing the cessation of the Part 21 proceedings under the RDC. The legal question was whether the First Defendant had satisfied the procedural requirements to unilaterally discontinue a claim against a Part 21 defendant and how the Court should exercise its discretion regarding costs in the absence of a settlement agreement or trial outcome. The Court had to ensure that the discontinuance complied with the RDC provisions governing the withdrawal of claims, thereby clearing the record of the 29 November 2018 filing.
How did the Court apply the RDC framework to finalize the discontinuance of the claim in CFI 002/2017?
The Court’s reasoning was grounded in the administrative finality provided by the RDC for discontinuance. Upon receiving the Notice of Discontinuance dated 4 February 2019, the Court verified that the procedural steps were satisfied. The judge then issued the order to reflect the status of the litigation.
As stated in the official record: "The First Defendant’s claim against the Second Defendant filed on 29 November 2018 be discontinued." By formalizing this, the Court ensured that the Part 21 claim was removed from the active case list, preventing further procedural delay regarding the ancillary dispute. This order follows a series of procedural adjustments in the case, including KBC ALDINI CAPITAL v DAVID BAAZOV [2018] DIFC CFI 002 — Alternative service and procedural extension (12 April 2018).
Which specific Rules of the DIFC Courts (RDC) govern the discontinuance of claims as applied in this order?
The discontinuance of the Part 21 claim is governed by Part 38 of the Rules of the DIFC Courts (RDC), which outlines the procedure for a claimant to discontinue all or part of a claim. RDC 38.2 allows a claimant to discontinue a claim without the permission of the Court if they file a notice of discontinuance and serve it on every other party. The Court’s order on 5 February 2019 acted as the formal recognition of this procedural step, ensuring that the court record accurately reflected the termination of the claim initiated on 29 November 2018.
How does the DIFC Court handle costs in instances of voluntary discontinuance under RDC 38?
Under RDC 38.10, the general rule is that a claimant who discontinues is liable for the costs which the defendant against whom the claim was discontinued incurred on or before the date on which notice of discontinuance was served. However, the Court retains the discretion to make a different order. In this specific instance, the Court exercised its discretion to order that "There shall be no order as to costs." This suggests that the parties likely reached an agreement regarding the allocation of legal expenses or that the Court determined that each party should bear their own costs in the context of the discontinued Part 21 claim.
What was the final disposition and relief granted by the Court on 5 February 2019?
The Court ordered the immediate discontinuance of the First Defendant’s claim against the Second Part 21 Defendant, Ferdyne Advisory Inc. The disposition was clear: the claim filed on 29 November 2018 was terminated. Regarding financial relief, the Court explicitly stated there would be no order as to costs, meaning neither party was awarded legal fees or expenses related to this specific ancillary claim. This order effectively resolved the Part 21 dispute, leaving the primary litigation between KBC Aldini Capital and the original defendants to continue.
What are the wider implications for practitioners managing Part 21 claims in the DIFC?
This order highlights the importance of adhering to the strict procedural requirements of RDC Part 38 when seeking to withdraw ancillary claims. Practitioners should note that while the RDC provides a clear pathway for discontinuance, the Court maintains oversight regarding the finality of the record and the allocation of costs. The "no order as to costs" outcome serves as a reminder that even when a party has the right to discontinue, the financial consequences remain subject to the Court’s discretion. Parties involved in multi-party litigation should anticipate that ancillary claims, such as those under Part 21, may be resolved independently of the main action, necessitating precise procedural management to avoid unnecessary costs or delays. For further context on procedural management, see KBC ALDINI CAPITAL v DAVID BAAZOV [2018] DIFC CFI 002 — Procedural extension for service of process (13 May 2018).
Where can I read the full judgment in KBC ALDINI CAPITAL v DAVID BAAZOV [2019] DIFC CFI 002?
The full text of the Order of Discontinuance can be accessed via the DIFC Courts website at the following link: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0022017-kbc-aldini-capital-limited-v-1-david-baazov-2-canaccord-genuity-corp-3-canaccord-genuity-dubai-limited-and-1-aleksei-1. A copy is also available on the CDN: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-002-2017_20190205.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| KBC Aldini Capital v David Baazov | [2017] DIFC CFI 002 | Primary case file |
Legislation referenced:
- Rules of the DIFC Courts (RDC) Part 21
- Rules of the DIFC Courts (RDC) Part 38