This consent order marks a procedural milestone in the long-running litigation involving the liquidation of Bank Sarasin-Alpen (ME) Limited, establishing a strict timetable for the determination of a stay application filed by Bank J. Safra Sarasin Asset Management (Middle East) Ltd.
What is the nature of the dispute in CFI 005/2016 and why is Bank J. Safra Sarasin Asset Management seeking a stay of proceedings?
The underlying litigation, Mr Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen (ME) Limited, represents a complex, multi-year dispute arising from the collapse and subsequent liquidation of Bank Sarasin-Alpen (ME) Limited. The claimants, Mr Rafed Abdel Mohsen Bader Al Khorafi, Mrs Amrah Ali Abdel Latif Al Hamad, and Mrs Ali Mohamed Sulaiman Al Rifai, have been engaged in protracted proceedings against the bank and its liquidator, Mr Shahab Haider. The litigation has involved numerous ancillary orders, including those concerning liquidator remuneration and periodic court oversight (28 December 2016) and judicial approval of liquidator remuneration (12 July 2017).
The current procedural development involves Application No. CFI-005-2016/7, filed by Bank J. Safra Sarasin Asset Management (Middle East) Ltd. This application seeks a stay of the ongoing proceedings. While the specific grounds for the stay are not detailed in the order, the filing reflects the ongoing complexity of managing claims against an entity in liquidation while other related corporate entities remain active within the DIFC. The court’s intervention via this consent order serves to streamline the resolution of this stay request.
Which judge presided over the issuance of the consent order in CFI 005/2016 on 14 June 2023?
The consent order was issued by Assistant Registrar Delvin Sumo in the DIFC Court of First Instance. The order was formally issued at 11:00 am on 14 June 2023, following the agreement of the parties to resolve the procedural mechanics of the stay application without the need for a formal oral hearing.
What were the positions of the parties regarding the procedural handling of the Stay Application in CFI 005/2016?
The parties, including the Applicant (Bank J. Safra Sarasin Asset Management) and the Respondents (the Bank in liquidation and its liquidator, Mr Shahab Haider), reached a consensus on the procedural path forward. Rather than incurring the time and expense of an oral hearing, the parties agreed that the Stay Application should be determined on the papers. This approach reflects a pragmatic effort to expedite the court's decision-making process regarding the stay, allowing the court to focus on the written evidence and legal arguments submitted by the respective parties within a compressed timeframe.
What is the specific legal question the court must answer regarding the Stay Application in CFI 005/2016?
The court is tasked with determining whether the proceedings in CFI 005/2016 should be stayed as requested by Bank J. Safra Sarasin Asset Management (Middle East) Ltd. The doctrinal issue centers on the court's discretionary power to grant a stay in the context of complex, multi-party litigation involving an entity in liquidation. The court must weigh the interests of the claimants in pursuing their claims against the potential prejudice or procedural necessity cited by the applicant for halting the current litigation trajectory.
How did Assistant Registrar Delvin Sumo structure the determination of the Stay Application in the consent order?
The Assistant Registrar adopted a structured, evidence-led approach to ensure the stay application is resolved efficiently. By mandating a specific sequence for the filing of evidence and submissions, the court ensures that the final determination is based on a complete record. The order explicitly states:
The Stay Application shall be determined on papers without an oral hearing.
This directive removes the requirement for the parties to appear before the court, shifting the burden to the quality of the written submissions. The timeline established—requiring evidence in answer by 13 June, evidence in reply by 15 June, and final written submissions by 16 June 2023—creates a tight, focused window for the court to review the merits of the stay request.
Which Rules of the DIFC Courts (RDC) govern the court's power to issue consent orders and determine applications on papers?
The court’s ability to issue this order is grounded in the Rules of the DIFC Courts (RDC), specifically those provisions that encourage the parties to reach agreements on procedural matters to save court time and costs. While the order does not cite specific RDC sections, it operates under the general case management powers of the court to direct the mode of trial or hearing (RDC Part 26) and the authority to approve consent orders (RDC Part 40). These rules empower the court to dispense with oral hearings when the parties consent and the court deems it appropriate for the just and efficient disposal of the application.
How does the current procedural order in CFI 005/2016 align with the court's historical approach to this case family?
The court has consistently maintained a high level of oversight in this case, as evidenced by previous orders such as the winding up order despite pending appeal (02 May 2016) and the formalizing the winding up of a financial subsidiary (06 August 2017). The current order continues this pattern of judicial management, ensuring that procedural disputes—such as stay applications—do not derail the broader liquidation process. By requiring the stay application to be determined on papers, the court maintains its role as the primary arbiter of the liquidation's pace, preventing unnecessary delays while ensuring all parties have a fair opportunity to present their arguments in writing.
What is the disposition of the Stay Application and how are costs allocated under the 14 June 2023 order?
The disposition of the order is a formal grant of the parties' request to determine the Stay Application on papers. The court ordered that the Respondents file evidence by 13 June 2023, the Applicant file reply evidence by 15 June 2023, and that all parties exchange written submissions by 16 June 2023. Regarding costs, the order specifies that "the costs of this Consent Order shall be in the case," meaning that the ultimate liability for the costs associated with this specific procedural application will be determined at the conclusion of the substantive proceedings.
What are the practical implications for practitioners managing stay applications in DIFC liquidation proceedings?
Practitioners should note that the DIFC Court is increasingly willing to utilize paper-based determinations for procedural applications, provided the parties are in agreement. This case demonstrates that when complex stay applications arise in long-standing liquidation matters, the court favors a structured, expedited timeline over oral hearings. Litigants must be prepared to front-load their evidence and legal arguments into the initial written submissions, as the opportunity for oral advocacy is explicitly waived in favor of efficiency. This approach underscores the necessity of high-quality, comprehensive written pleadings in the DIFC Court of First Instance.
Where can I read the full judgment in MR RAFED ABDEL MOHSEN BADER AL KHORAFI v BANK SARASIN ALPEN [2023] DIFC CFI 005?
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-first-instance/cfi-0052016-1-mr-rafed-abdel-mohsen-bader-al-khorafi-2-mrs-amrah-ali-abdel-latif-al-hamad-3-mrs-ali-mohamed-sulaiman-al-rifai-v-1 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-005-2016_20230614.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| MR RAFED ABDEL MOHSEN BADER AL KHORAFI v BANK SARASIN-ALPEN | [2016] DIFC CFI 005 | Principal proceedings |
Legislation referenced:
- Rules of the DIFC Courts (RDC) Part 26 (Case Management)
- Rules of the DIFC Courts (RDC) Part 40 (Consent Orders)