THE INDUSTRIAL GROUP v MR ABDELAZIM EL SHIKH EL FADIL HAMID [2022] DIFC CFI 029 — Consent order staying detailed assessment of costs (20 October 2022)

This consent order formalizes a stay of detailed assessment proceedings in the long-running dispute between The Industrial Group and Mr Abdelazim El Shikh El Fadil Hamid, pending the resolution of related appellate costs issues.

What is the specific nature of the dispute between The Industrial Group and Mr Abdelazim El Shikh El Fadil Hamid that necessitated this stay of costs assessment?

The litigation between The Industrial Group and Mr Abdelazim El Shikh El Fadil Hamid has been a protracted matter involving multiple procedural stages, including default judgment challenges and disclosure disputes. The current order concerns the finalization of costs following the substantive judgments delivered by Justice Sir Richard Field in 2022. Because the parties are simultaneously engaged in appellate proceedings under case numbers CA-005-2022 and CA-006-2022, the Court of First Instance determined that proceeding with a detailed assessment of costs in the CFI matter would be premature.

The parties reached a consensus to pause the assessment process to ensure alignment with the eventual costs orders to be issued by the Court of Appeal. As noted in the order:

The detailed assessment of the parties' costs of these proceedings is stayed pending the Court of Appeal's order on the parties' costs of the proceedings in CA-005-022 and CA-006-2022 (the "CA Costs Order").

This stay prevents the unnecessary expenditure of judicial and party resources on a detailed assessment that might be rendered redundant or inconsistent by the outcome of the appellate costs determination. For context on the procedural history of this case, see THE INDUSTRIAL GROUP v ABDELAZIM EL SHIKH EL FADIL HAMID [2018] DIFC CFI 029 — Procedural consolidation and case management (14 August 2018), THE INDUSTRIAL GROUP v ABDELAZIM EL SHIKH EL FADIL HAMID [2018] DIFC CFI 029 — Default judgment set-aside and stay of execution (25 October 2018), THE INDUSTRIAL GROUP v ABDELAZIM EL SHIKH EL FADIL HAMID [2019] DIFC CFI 029 — Refusal of permission to appeal default judgment (16 January 2019), THE INDUSTRIAL GROUP v ABDELAZIM EL SHIKH EL FADIL HAMID [2019] DIFC CFI 029 — Judicial Officer rejects procedural extension for pleadings (16 April 2019), and THE INDUSTRIAL GROUP v ABDELAZIM EL SHIKH EL FADIL HAMID [2019] DIFC CFI 029 — Compelling disclosure via Redfern Schedule (16 July 2019).

Which judge presided over the October 2022 consent order in the DIFC Court of First Instance?

The consent order was issued under the authority of Justice Sir Richard Field, sitting in the DIFC Court of First Instance. Justice Field had previously presided over the substantive judgment on 6 April 2022 and the subsequent Order with Reasons on 17 June 2022, providing him with comprehensive oversight of the litigation’s trajectory leading up to this costs-related stay.

What was the legal position of The Industrial Group and Mr Abdelazim El Shikh El Fadil Hamid regarding the timing of the detailed assessment?

The parties, through their respective legal representatives, engaged in email correspondence with the DIFC Courts Registry to propose a stay of the detailed assessment. Their shared position was that the assessment of costs in CFI 029/2018 should be contingent upon the outcome of the Court of Appeal’s decision regarding costs in the related appellate files, CA-005-2022 and CA-006-2022. By seeking this consent order, the parties effectively requested that the Court formalize a "wait-and-see" approach, thereby avoiding the risk of conflicting costs orders or the need for subsequent amendments to the assessment process once the appellate court has ruled.

What is the precise jurisdictional question regarding the interplay between CFI costs assessments and pending Court of Appeal costs orders?

The court was required to determine whether it was appropriate to exercise its case management powers to stay a detailed assessment of costs in the Court of First Instance pending the outcome of appellate proceedings. The doctrinal issue centers on the efficiency of the DIFC Court’s costs regime: specifically, whether the court should permit the commencement of a detailed assessment when the underlying liability for costs—or the scope of those costs—might be fundamentally altered or clarified by a pending decision in the Court of Appeal.

How did Justice Sir Richard Field apply the principle of procedural efficiency in granting the stay?

Justice Sir Richard Field exercised the court's inherent case management powers to grant the stay, recognizing that the "CA Costs Order" would likely provide the necessary framework or precedent for the assessment of costs in the CFI proceedings. By staying the assessment, the court ensures that the parties do not incur the significant costs associated with a detailed assessment process until the appellate court has provided clarity on the broader costs landscape of the litigation.

The court’s reasoning is reflected in the specific terms agreed upon by the parties:

The period for commencing detailed assessment proceedings shall be one month after the date of the CA Costs Order, or as otherwise ordered by the Court.

This approach aligns with the DIFC Courts' objective of dealing with cases justly and at a proportionate cost, preventing the parties from engaging in potentially duplicative or premature litigation regarding the quantum of legal fees.

Which specific DIFC Rules of Court (RDC) govern the commencement of detailed assessment proceedings in this context?

While the order is a creature of consent, it operates within the framework of the Rules of the DIFC Courts (RDC) Part 38, which governs the assessment of costs. Specifically, RDC 38.29 requires a party to commence detailed assessment proceedings within three months of the date of the judgment or order. By issuing this consent order, the court effectively modified the standard timeline prescribed by the RDC, extending the commencement period to one month following the issuance of the CA Costs Order.

How did the court utilize the precedent of the parties' prior consent to manage the litigation timeline?

The court relied on the parties' agreement to bypass the rigid timelines typically associated with the RDC 38 assessment process. By acknowledging the email correspondence between legal representatives, the court treated the agreement as a valid exercise of party autonomy in procedural matters. This allowed the court to avoid a contested hearing on whether a stay was appropriate, instead adopting the parties' proposed timeline to ensure that the final assessment of costs is conducted in a manner that respects the hierarchy of the DIFC judicial system, particularly the pending appellate decisions.

What is the final disposition of the October 2022 order regarding the assessment of costs?

The court ordered that the detailed assessment of costs is stayed until the Court of Appeal issues its order on costs in CA-005-2022 and CA-006-2022. Furthermore, the court specified that the deadline for commencing detailed assessment proceedings is set for one month after the date of the CA Costs Order. Notably, the court directed that no costs shall arise from the application for this consent order itself, ensuring that the procedural step of seeking the stay did not add further financial burden to the parties.

What does this consent order imply for practitioners managing costs assessments in multi-stage DIFC litigation?

This order serves as a reminder that practitioners should proactively identify potential conflicts between CFI costs assessments and pending appellate outcomes. Where appellate proceedings are ongoing, it is standard practice to seek a stay of the detailed assessment to avoid wasted costs. Practitioners should note that the DIFC Court is highly receptive to consent-based procedural stays that promote efficiency and avoid the risk of inconsistent costs orders. Failure to seek such a stay may result in the court refusing to entertain an assessment until the appellate position is finalized, or worse, the parties incurring costs for an assessment that is later deemed premature.

Where can I read the full judgment in THE INDUSTRIAL GROUP v MR ABDELAZIM EL SHIKH EL FADIL HAMID [2022] DIFC CFI 029?

The full text of the consent order is available on the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0292018-industrial-group-v-mr-abdelazim-el-shikh-el-fadil-hamid or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-029-2018_20221020.txt.

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC) Part 38 (Costs)