Why did the defendants in CFI 009/2023 and CFI 005/2016 file Renewed Permission Applications against the orders of Justice Sir Jeremy Cooke?
The litigation involves a complex intersection of banking disputes, specifically concerning Bank Sarasin-Alpen (ME) Limited and its liquidator, Shahab Haider, against various individual defendants including Mr Elie Vivien Sassoon, Mr Stephane Emile Astruc, and Mr Edmond Carton. The dispute also encompasses the long-standing litigation initiated by Mr Rafed Abdel Mohsen Bader Al Khorafi and others against the Bank. The core of the current procedural impasse stems from the defendants' dissatisfaction with two specific rulings made by Justice Sir Jeremy Cooke in late 2023.
The defendants sought to challenge these rulings through the formal appellate process, leading to the filing of two distinct applications. As noted in the court record:
The Renewed Permission Applications dated 28 September 2023 and 8 November 2023 are dismissed.
These applications were essentially attempts to bypass the initial findings of the Court of First Instance regarding procedural or substantive directions issued during the autumn of 2023. By seeking "renewed" permission, the applicants were exercising their right to have the refusal of permission to appeal reconsidered by the Chief Justice, aiming to overturn the specific directions set by Justice Cooke on 7 September and 18 October 2023.
Which judge presided over the hearing of the Renewed Permission Applications on 18 December 2023?
The hearing to determine the Renewed Permission Applications was presided over by Chief Justice Zaki Azmi. The proceedings took place within the DIFC Court of First Instance. Following the arguments presented by counsel for both the claimants and the defendants, the Chief Justice delivered an extempore judgment on 21 December 2023, formally dismissing the applications and finalizing the procedural status of the challenged orders.
What arguments did the defendants advance in their Renewed Permission Applications to challenge the orders of 7 September and 18 October 2023?
While the specific technical arguments are contained within the confidential appeal notices, the defendants—Mr Elie Vivien Sassoon, Mr Stephane Emile Astruc, and Mr Edmond Carton—argued that the orders issued by Justice Sir Jeremy Cooke warranted appellate review. These orders, issued following hearings on 7 September 2023 and 18 October 2023, likely involved significant procedural or evidentiary rulings that the defendants contended were either legally flawed or procedurally unfair.
The claimants, represented by the liquidator Shahab Haider, opposed these applications, maintaining that the orders of Justice Cooke were sound and that the defendants failed to meet the requisite threshold for permission to appeal. The dispute highlights the ongoing tension between the parties regarding the management of the liquidation process and the liability of the individual defendants in the broader context of the Bank Sarasin-Alpen litigation.
What was the specific legal question Chief Justice Zaki Azmi had to answer regarding the Renewed Permission Applications?
The primary legal question before the Chief Justice was whether the defendants had demonstrated a "real prospect of success" or some other compelling reason for an appeal, as required under the Rules of the DIFC Courts (RDC) for granting permission to appeal. The Court had to determine if Justice Sir Jeremy Cooke’s earlier rulings contained errors of law or material procedural irregularities that would necessitate the intervention of the Court of Appeal.
The issue was not the merits of the underlying banking dispute itself, but rather the threshold test for appellate intervention. The Chief Justice had to evaluate whether the grounds submitted by the defendants in their notices dated 28 September 2023 and 8 November 2023 satisfied the strict criteria for challenging interlocutory orders in the DIFC.
How did Chief Justice Zaki Azmi apply the test for granting permission to appeal in his extempore judgment?
In evaluating the applications, the Chief Justice reviewed the relevant materials on the court file and the submissions made by counsel during the 18 December 2023 hearing. The reasoning process involved a rigorous assessment of whether the defendants’ arguments met the standard required to disturb the orders of a sitting judge of the Court of First Instance.
Having reviewed the submissions, the Chief Justice concluded that the applications lacked the merit required to proceed. The court’s reasoning focused on the finality of the interlocutory orders and the absence of a sufficient basis to justify an appeal. As stated in the formal order:
The Renewed Permission Applications dated 28 September 2023 and 8 November 2023 are dismissed.
This dismissal indicates that the Chief Justice found no compelling reason to overturn the decisions made by Justice Cooke, effectively maintaining the status quo of the proceedings as they stood following the October hearing.
Which specific Rules of the DIFC Courts (RDC) govern the process for seeking permission to appeal?
The proceedings were governed by the Rules of the DIFC Courts (RDC), which provide the framework for both the initial application for permission to appeal and the "renewed" application process before the Chief Justice. While the order does not cite specific RDC numbers, the procedure for seeking permission to appeal is generally dictated by the rules concerning the Court of Appeal’s jurisdiction and the criteria for leave to appeal interlocutory decisions.
The court also relied on the procedural history established in the related case of Al Khorafi v Bank Sarasin-Alpen (ME) Limited (CFI 005/2016), which serves as the foundational litigation for the current disputes involving the Bank’s liquidator and the individual defendants.
How did the court utilize the precedent of CFI 005/2016 in the context of this order?
The reference to CFI 005/2016 in the court’s order serves to contextualize the current application within the broader, long-running litigation involving the claimants and the Bank. The court treated the current application as a procedural development within the ongoing saga of the Bank Sarasin-Alpen liquidation. By grouping the cases in the order, the Chief Justice acknowledged that the procedural rulings in CFI 009/2023 are inextricably linked to the liabilities and claims being litigated in the earlier CFI 005/2016 matter.
What was the outcome of the hearing, and what orders were made regarding costs?
The outcome of the hearing was a definitive dismissal of the defendants' attempts to appeal. The Chief Justice ordered that the Renewed Permission Application dated 28 September 2023 and the Renewed Permission Application dated 8 November 2023 be dismissed in their entirety.
Regarding the costs of these applications, the Court directed that they be assessed by the Registrar if the parties are unable to reach a mutual agreement. This is a standard procedural order in the DIFC Courts, ensuring that the prevailing party is compensated for the costs incurred in opposing the unsuccessful appeal applications.
What are the practical implications for litigants in complex DIFC banking disputes following this ruling?
This order reinforces the DIFC Courts' commitment to the efficient management of complex litigation and the high bar for challenging interlocutory orders. Litigants should note that the Chief Justice will not readily grant permission to appeal unless there is a clear, compelling legal or procedural error. The dismissal serves as a reminder that procedural challenges must be grounded in substantial legal arguments that meet the "real prospect of success" test.
For practitioners, the case underscores the importance of ensuring that any application for permission to appeal is robustly supported by evidence and legal authority from the outset, as "renewed" applications face rigorous scrutiny. The referral of costs to the Registrar also highlights the court's preference for parties to resolve ancillary financial matters through negotiation before involving the court’s administrative resources.
Where can I read the full judgment in Bank Sarasin-Alpen (ME) Limited v Mr Elie Vivien Sassoon [2023] DIFC CFI 009?
The full 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-3
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Bank Sarasin-Alpen (ME) Limited v Mr Elie Vivien Sassoon | CFI 009/2023 | Primary matter |
| Mr Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen (ME) Limited | CFI 005/2016 | Related litigation |
Legislation referenced:
- Rules of the DIFC Courts (RDC)