BANK SARASIN-ALPEN v MR ELIE VIVIEN SASSOON [2023] DIFC CFI 009 — Procedural extensions for costs and discovery (02 November 2023)

This consent order formalizes a procedural agreement between the parties to extend deadlines for the payment of summarily assessed costs and the production of documents in the ongoing litigation involving Bank Sarasin-Alpen (ME) Limited and its liquidator.

What is the nature of the dispute between Bank Sarasin-Alpen (ME) Limited and the individual defendants regarding the EOT and jurisdiction applications?

The litigation involves a complex intersection of claims, specifically CFI 009/2023 and the long-standing CFI 005/2016, which centers on the liquidation of Bank Sarasin-Alpen (ME) Limited. The current procedural dispute concerns the financial obligations arising from unsuccessful interlocutory applications filed by the First, Second, and Third Defendants—Mr. Elie Vivien Sassoon, Mr. Stephane Emile Astruc, and Mr. Edmond Carton. These individuals were ordered to pay costs following their unsuccessful attempts to challenge the court's jurisdiction and their requests for extensions of time (EOT).

The stakes involve significant sums of money assessed by the court to compensate the Claimants for the costs incurred in defending these procedural challenges. As noted in the court's records:

"The deadline set out at paragraph 2 of the Order for the First, Second and Third Defendants to pay, on a joint and several basis, the Claimants’ costs of the EOT Application insofar as they relate to the First, Second and Third Defendants on the standard basis, summarily assessed in the sum of AED 142,000, is extended to 4pm on 6 November 2023."

The dispute highlights the rigorous enforcement of costs orders within the DIFC Courts, where procedural delays are treated with strict oversight, necessitating formal consent orders to adjust payment timelines.

Which judge presided over the consent order issued in the DIFC Court of First Instance on 2 November 2023?

The consent order was issued under the authority of the DIFC Court of First Instance, following the substantive directions provided by Justice Sir Jeremy Cooke. The order, dated 2 November 2023, serves as a procedural refinement of the previous order issued by Justice Cooke on 1 November 2023, which itself followed a hearing held on 18 October 2023.

What arguments did the parties advance regarding the extension of deadlines for cost payments and document production?

While the specific oral arguments made during the 18 October 2023 hearing are not detailed in the consent order, the subsequent agreement between the parties indicates a collaborative approach to managing the litigation timetable. The Defendants, represented by their legal counsel, sought an extension for the payment of costs totaling AED 352,000 (AED 142,000 for the EOT application and AED 210,000 for the jurisdiction applications).

The Claimants, including the liquidator Shahab Haider, agreed to these extensions, provided that the discovery process—specifically the production of documents requested on 25 October 2023—remained on a tight schedule. By entering into this consent order, the parties effectively avoided further contested hearings on procedural delays, choosing instead to align their obligations under a court-sanctioned timeline.

What was the precise legal question the court had to resolve regarding the enforcement of the previous cost orders?

The court was required to determine whether it should grant a formal extension to the deadlines previously established in Justice Sir Jeremy Cooke’s order of 1 November 2023. The legal issue was not the merits of the underlying claims, but rather the court's discretion under the Rules of the DIFC Courts (RDC) to manage its own process and facilitate the orderly resolution of interlocutory matters. The court had to ensure that the extension of time for the payment of costs and the production of documents did not prejudice the overall progress of the litigation or the rights of the parties involved.

How did the court exercise its discretion in granting the consent order for the extension of deadlines?

The court exercised its inherent case management powers to facilitate the parties' agreement. By formalizing the request into a Consent Order, the court ensured that the new deadlines were enforceable as a court order, thereby providing clarity and finality to the procedural requirements. The reasoning reflects the court's preference for party-led resolution of procedural timelines, provided they remain within the bounds of the RDC.

The court’s decision to grant the extension is captured in the following directive:

"The deadline set out at paragraph 5 of the Order for the First, Second and Third Defendants to pay, on a joint and several basis, the Claimants’ costs of the D1-D3 Jurisdiction Applications on the standard basis, summarily assessed in the sum of AED 210,000, is extended to 4pm on 6 November 2023."

This approach demonstrates the court's role as a facilitator of efficient litigation, ensuring that administrative hurdles do not derail the substantive progress of complex banking insolvency cases.

Which specific Rules of the DIFC Courts (RDC) govern the summary assessment of costs and the extension of time?

The court’s authority to summarily assess costs and manage the timetable is derived from the Rules of the DIFC Courts. Specifically, the court relies on its broad case management powers under RDC Part 4, which allows for the variation of dates and the imposition of conditions on parties. The summary assessment of costs is governed by RDC Part 38, which provides the framework for the court to determine the amount of costs payable without the need for a detailed assessment process, provided the parties are in agreement or the court deems it appropriate.

How did the court apply the principles of procedural fairness in the context of the document production deadline?

The court balanced the Defendants' need for more time to pay costs against the Claimants' need for timely discovery. By extending the deadline for the Claimants to produce documents to 3 November 2023, the court ensured that the discovery process remained active. This reflects the court's application of the overriding objective under RDC Part 1, which requires the court to deal with cases justly and at a proportionate cost, ensuring that both parties are on equal footing regarding the exchange of information.

What was the final disposition of the court regarding the monetary relief and the production of documents?

The court granted the requested extensions, effectively resetting the deadlines for the First, Second, and Third Defendants to satisfy their joint and several liability for costs. The total sum of AED 352,000 (AED 142,000 + AED 210,000) was ordered to be paid by 4pm on 6 November 2023. Additionally, the Claimants were granted until 3 November 2023 to either produce the requested documents or formally raise objections to their production. No further costs were awarded in relation to this specific consent order application.

How does this consent order influence the practice of managing complex multi-party litigation in the DIFC?

This case serves as a practical example of how parties in high-stakes banking litigation can utilize consent orders to manage procedural friction. For practitioners, it underscores the importance of maintaining open channels of communication with opposing counsel to negotiate extensions before deadlines expire. It also demonstrates that the DIFC Court of First Instance is willing to accommodate reasonable requests for extensions, provided they are clearly documented and do not cause undue delay to the court's calendar. Litigants should anticipate that the court will hold them strictly to these newly agreed-upon dates once they are formalized in a consent order.

Where can I read the full judgment in Bank Sarasin-alpen (ME) Limited v Mr Elie Vivien Sassoon [2023] DIFC CFI 009?

The full text of the Consent Order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0092023-1-bank-sarasin-alpen-me-limited-2-shahab-haider-his-capacity-liquidator-bank-sarasin-alpen-me-limited-v-1-mr-elie-vi-2

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC) Part 1 (Overriding Objective)
• Rules of the DIFC Courts (RDC) Part 4 (Case Management)
• Rules of the DIFC Courts (RDC) Part 38 (Costs)