What specific procedural error led Fursa Consulting to fail in its attempt to secure a Default Costs Certificate against Bay Gate Investment in CFI 010/2024?
The dispute arose following a judgment issued by H.E. Justice Thomas Bathurst on 21 August 2025, which necessitated a subsequent assessment of costs. Fursa Consulting, acting as the Claimant, sought to recover its legal expenses from Bay Gate Investment LLC. When the Defendant failed to serve Points of Dispute within the 21-day period prescribed by the Rules of the DIFC Courts (RDC), the Claimant attempted to expedite the recovery process by filing an application for a Default Costs Certificate.
However, the Claimant utilized a general P23 Application Notice to request this relief rather than adhering to the specialized procedure mandated for detailed assessments. The court found that this procedural shortcut invalidated the request. As noted in the court’s findings:
On 19 November 2025, the Claimant filed Application No. CFI-010-2024/7 seeking the issuance of a Default Costs Certificate (the “Application”).
The failure to follow the specific administrative path meant that the court could not grant the certificate, despite the Defendant’s underlying failure to contest the bill of costs.
Which judge presided over the costs assessment application in Fursa Consulting v Bay Gate Investment and in which division of the DIFC Courts was this heard?
The application was heard and determined by Assistant Registrar Hayley Norton. The matter was processed within the Court of First Instance (CFI) of the Dubai International Financial Centre Courts. The order was formally issued on 23 January 2026, following the Claimant's initial filing of the application on 19 November 2025.
What arguments did Fursa Consulting advance to justify the issuance of a Default Costs Certificate, and how did the court respond?
Fursa Consulting, supported by the witness statement of Nasir Hakim Salman Basheer dated 7 November 2025, argued that it had satisfied the substantive requirements for a default judgment on costs. The Claimant contended that because the Defendant had failed to serve Points of Dispute within 21 days of the service of the Bill of Costs on 16 October 2025, the court was obligated to issue the certificate. The Claimant’s position was summarized in the application as follows:
The Claimant is therefore entitled to a Default Costs Certificate quantifying the recoverable costs as set out in the Detailed Professional Fees and Disbursements previously filed and served.”
(emphasis added)
The court did not reach the merits of the quantum of costs claimed. Instead, Assistant Registrar Norton focused exclusively on the procedural mechanism employed. The court held that the Claimant’s reliance on a general application notice was legally insufficient, regardless of the Defendant's silence, because the RDC mandates a specific, fee-paid commencement process that was not followed.
What was the precise jurisdictional and procedural question the court had to answer regarding the application of RDC 40.5?
The central question before the court was whether a party seeking a Default Costs Certificate under RDC 40.17 can utilize a general P23 Application Notice to initiate the process, or if the party is strictly bound by the commencement procedures outlined in RDC 40.5. The court had to determine if the failure to pay the specific filing fee and use the prescribed Form P40/01 constituted a fatal procedural defect that precluded the court from exercising its power to issue a Default Costs Certificate.
How did Assistant Registrar Hayley Norton apply the RDC 40.5 test to the Claimant’s filing?
Assistant Registrar Norton conducted a review of the court file to determine if the Claimant had satisfied the mandatory steps for commencing detailed assessment proceedings. The reasoning was straightforward: the RDC provides a specific, exclusive path for costs assessments that cannot be substituted by general motions. The Registrar’s reasoning emphasized the mandatory nature of the rules:
Having reviewed the Court file, I find that the Claimant has failed to comply with the procedural requirements set out in Rule 40.5 of the Rules of the DIFC Courts (“RDC”).
The court reasoned that the procedural rules are not merely suggestions but are conditions precedent to the court’s jurisdiction to issue a Default Costs Certificate. By failing to use the correct form and failing to pay the requisite filing fee, the Claimant failed to properly trigger the assessment process, rendering the application for a default certificate premature and legally deficient.
Which specific RDC rules were cited by the court to demonstrate the Claimant’s non-compliance?
The court relied heavily on RDC 40.5, which dictates the commencement of detailed assessment proceedings. The court clarified that this rule requires the receiving party to serve a Notice of Commencement in Form P40/01 alongside the bill of costs. Furthermore, the court referenced RDC 40.15 and 40.17, which govern the issuance of Default Costs Certificates. The court held that these rules are contingent upon the proper commencement of proceedings under RDC 40.5. The court’s interpretation of the RDC was explicit:
RDC 40.5 requires that detailed assessment proceedings be commenced by the receiving party serving on the paying party both (i) a Notice of Commencement in Form P40/01; and (ii) a copy of the bill of costs.
The court further emphasized that the RDC does not permit the use of a P23 Application Notice for this specific purpose, as the P23 is intended for general interlocutory applications, not the initiation of the detailed assessment process.
How did the court interpret the relationship between RDC 40.5 and the issuance of a Default Costs Certificate?
The court interpreted RDC 40.5 as a mandatory gateway. The reasoning was that the right to a Default Costs Certificate under RDC 40.17 is not an automatic entitlement that arises simply because a deadline has passed; rather, it is a remedy available only to a party who has correctly initiated the assessment process. The court’s logic was that if the commencement process is flawed, the subsequent application for a default certificate is fundamentally unsupported. As noted in the court’s reasoning:
As the Claimant has failed to comply with the mandatory procedural requirements for commencing detailed assessment proceedings, it is not entitled to rely upon RDC 40.15 and 40.17 for the issuance of a Default Costs Certificate.
This reasoning reinforces the principle that procedural compliance in the DIFC Courts is strictly enforced, and parties cannot bypass specific forms or fee requirements by using general procedural vehicles.
What was the final disposition of the application, and what orders were made regarding costs?
The court dismissed the application in its entirety. Assistant Registrar Norton ordered that the Claimant, having failed to follow the correct procedure, must bear the costs of its own failed application. The court’s order was final and left no room for the Claimant to recover the costs of the application from the Defendant. The court’s conclusion was:
Accordingly, the Application must be dismissed, and the Claimant shall bear its own costs of the Application.
What are the wider implications for DIFC practitioners regarding the commencement of detailed assessment proceedings?
This case serves as a stern reminder that the DIFC Courts maintain a high standard for procedural compliance, particularly regarding costs assessments. Practitioners must ensure that they do not attempt to "bundle" costs applications into general P23 notices. The requirement to use Form P40/01 and pay the associated filing fee is a mandatory jurisdictional step. Future litigants must anticipate that any deviation from the specific RDC 40.5 protocol will result in the dismissal of their application, regardless of the merits of the underlying costs claim or the opponent's failure to serve Points of Dispute.
Where can I read the full judgment in Fursa Consulting v Bay Gate Investment [2026] DIFC CFI 010?
The full text of the order can be accessed via the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0102024-fursa-consulting-v-bay-gate-investment-llc
Legislation referenced:
- Rules of the DIFC Courts (RDC): Rule 40.5, Rule 40.15, Rule 40.17