This order formalizes the procedural merger of long-standing litigation concerning the liquidation of Bank Sarasin-Alpen (ME) Limited, establishing a unified framework for resolving complex insolvency disputes and strike-out applications.
How did Justice Sir Jeremy Cooke consolidate the Part 7 Claim and the Insolvency Claim in CFI 009/2023?
The court determined that the most efficient path forward for the ongoing litigation involving Bank Sarasin-Alpen (ME) Limited and its liquidator, Shahab Haider, was to merge the separate streams of litigation into a single docket. By consolidating the Part 7 Claim (CFI 009/2023) with the historical Insolvency Claim (CFI 005/2016), the court aimed to eliminate procedural fragmentation and ensure that all outstanding applications—including strike-out motions and substantive counterclaims—are heard in a coherent manner. The order stipulates that the Part 7 Claim serves as the primary vehicle for all future filings.
As specified in the court's order:
The Part 7 Claim shall be the lead case and the title of the Part 7 Claim shall be amended by adding thereto the title of the Insolvency Claim.
This consolidation is explicitly "without prejudice" to any existing arguments regarding the validity of procedural steps taken prior to the order, ensuring that the parties retain their rights to challenge the historical development of the case while moving toward a consolidated resolution. Further details on the background of this dispute can be found in BANK SARASIN-ALPEN v MR ELIE VIVIEN SASSOON [2023] DIFC CFI 009 — Jurisdiction and service challenges in corporate insolvency (15 September 2023).
Which judge presided over the consolidation order in CFI 009/2023 and when was it issued?
Justice Sir Jeremy Cooke presided over this matter in the DIFC Court of First Instance. The order was formally issued on 7 February 2024, following a review of the evidence and submissions filed on the court record and a hearing involving counsel for the claimants and the defendants.
What were the specific legal arguments advanced by the parties regarding the strike-out applications and the Article 102/103 Counterclaim?
The litigation involves a complex interplay between the Liquidator’s claims and the Defendants' efforts to terminate the proceedings. The Defendants, including Mr Elie Vivien Sassoon, Mr Stephane Emile Astruc, Mr Edmond Carton, Bank J Safra Sarasin Limited, and Bank J Safra Sarasin Asset Management (Middle East) Limited, filed applications to strike out both the Part 7 Claim and the Insolvency Claim. These applications were brought pursuant to RDC 4.16 and RDC 24.1, arguing that the claims lacked a sufficient basis to proceed to trial or warranted immediate judgment in the Defendants' favor.
Conversely, the Fourth Defendant (Bank J Safra Sarasin Limited) advanced a Counterclaim specifically invoking the court’s powers under the Insolvency Law 2019. The claimants sought directions to manage these competing applications, leading to the court’s decision to re-characterize the Fourth Defendant’s counterclaim as a formal application under RDC Part 54. This procedural shift was necessary to address the substantive insolvency issues—specifically those concerning the conduct of the liquidation—within the structured timeline established by the court.
What was the precise doctrinal issue the court had to resolve regarding the Fourth Defendant’s Counterclaim under the Insolvency Law 2019?
The court had to determine the appropriate procedural mechanism for adjudicating the Fourth Defendant’s challenge to the liquidation process. The core issue was whether the matters raised in the Counterclaim, which relied upon Articles 102 and 103 of the Insolvency Law 2019, could be effectively ventilated within the existing Part 7 framework or if they required a distinct, expedited application process.
By re-classifying the Counterclaim as an application under RDC Part 54, the court addressed the doctrinal necessity of ensuring that challenges to a liquidator’s actions or the insolvency process itself are handled with the specific procedural rigor required by the DIFC Insolvency Law, rather than being buried within the broader, more general pleadings of a Part 7 claim.
How did Justice Sir Jeremy Cooke apply the RDC Part 54 framework to the Fourth Defendant’s Article 102/103 Application?
Justice Sir Jeremy Cooke utilized his case management powers to transition the Fourth Defendant’s counterclaim into a structured application. This ensures that the specific allegations regarding the liquidation are supported by evidence and addressed in a dedicated hearing, rather than being left to the general trial schedule.
The court’s reasoning focused on streamlining the dispute:
The matters raised in the Fourth Defendant’s Counterclaim pursuant to Articles 102 and/or 103 of Insolvency Law 2019 (“Articles 102/103”) shall be pursued as an application pursuant to RDC Part 54, subject to the provisions of this Order.
This approach mandates that the Fourth Defendant must set out the relief claimed and the basis for such relief with supporting evidence, allowing the Claimants a fair opportunity to file evidence in answer. The court established a strict timetable, requiring the Claimants to respond by 26 February 2024, with the Fourth Defendant’s reply due by 4 March 2024, culminating in a one-day hearing on 12 March 2024.
Which specific DIFC statutes and RDC rules were applied to manage the consolidation and the Article 102/103 Application?
The court relied heavily on the DIFC Insolvency Law 2019, specifically Articles 102 and 103, which govern the court's oversight of liquidators and the conduct of insolvency proceedings. Procedurally, the court invoked RDC 4.16 (the court’s power to strike out a statement of case) and RDC 24.1 (the power to grant summary judgment) to address the Defendants' pending applications.
Furthermore, the court utilized RDC Part 54 to structure the Article 102/103 Application, ensuring that the evidentiary requirements for such a significant challenge to the liquidation were met. The court also exercised its authority under RDC 28.5(1) to compel the disclosure of the Settlement Agreement referenced in the Defendants' Defence and Counterclaim, setting a deadline of 26 January 2024 for its production.
How did the court utilize RDC 28.5(1) and other procedural rules to ensure transparency in the lead-up to the March 2024 hearings?
The court used RDC 28.5(1) as a tool for disclosure, specifically targeting the Settlement Agreement mentioned in the Defendants' pleadings. By ordering the production of this document, the court ensured that the Claimants and the Court have full visibility into the agreements that underpin the Defendants' defense.
As noted in the order:
The Defendants shall provide, pursuant to RDC 28.5(1), the Settlement Agreement mentioned in paragraph 167.3 of the Defence and Counterclaim by 4pm on 26 January 2024.
This procedural step is critical for the upcoming March hearings, as it prevents the parties from relying on undisclosed agreements while simultaneously challenging the liquidator’s standing or the validity of the insolvency claims.
What was the final disposition of the order, including the specific directions for the Liquidator?
The court ordered the consolidation of the Part 7 Claim and the Insolvency Claim, with all future documents to be filed under Case No. CFI-009/2023. Beyond consolidation, the court issued a comprehensive timetable for the Article 102/103 Application, including deadlines for evidence and skeleton arguments.
Crucially, the court addressed the status of the Liquidator by ordering that he provide notice to creditors regarding an application for his removal. The court mandated: "The Second Claimant (the 'Liquidator') shall give notice to the creditors of the First Claimant that an application has been made to remove the Liquidator and that the application will be heard before the DIFC Courts on 12 March 2024 by no later than 4pm on 16 February 2024." This ensures that the creditors, who are the primary stakeholders in the insolvency, are kept informed of the potential change in the administration of the estate.
What are the wider implications of this consolidation for DIFC insolvency practice?
This order highlights the DIFC Court’s preference for procedural efficiency in complex, multi-party insolvency litigation. By consolidating Part 7 claims with insolvency-specific applications, the court prevents the "siloing" of disputes that are fundamentally intertwined. Practitioners must now anticipate that the court will actively re-characterize counterclaims that touch upon insolvency law into formal RDC Part 54 applications, thereby forcing a more rigorous and evidence-based approach to challenging liquidators.
The requirement for the Liquidator to notify creditors of removal applications also serves as a reminder of the court’s commitment to transparency in corporate insolvency. Litigants should be prepared for strict adherence to court-mandated timetables, as Justice Sir Jeremy Cooke’s order leaves little room for delay in the lead-up to the substantive hearings scheduled for March and April 2024.
Where can I read the full judgment in Bank Sarasin-alpen v Mr Elie Vivien Sassoon [2024] 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-4
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Bank Sarasin-Alpen (ME) Limited v Mr Elie Vivien Sassoon | [2023] DIFC CFI 009 | Lead case for consolidation |
| Mr Rafed Abdel Mohsen Bader Al Khorafi v Bank Sarasin-Alpen (ME) Limited | [2016] DIFC CFI 005 | Consolidated insolvency claim |
Legislation referenced:
- Insolvency Law 2019, Articles 102 and 103
- Rules of the DIFC Courts (RDC):
- RDC 4.16 (Strike-out)
- RDC 24.1 (Immediate Judgment)
- RDC Part 54 (Applications)
- RDC 17.27 (Amendment of Statements of Case)
- RDC 28.5(1) (Disclosure of Documents)