The DIFC Court of First Instance has formally refused the Claimants’ application for permission to appeal the discharge of a worldwide freezing order, citing a lack of real prospects of success and reinforcing the stringent obligations of fair presentation required in ex parte applications.
Did EFG (Middle East) Ltd and EFG Bank Ltd demonstrate real prospects of success in their appeal against the discharge of the freezing injunction granted against Marj Holding Limited, ARJ Holding Limited, and Mohammad Ahmad Ramadhan Juma?
The dispute originated from the Claimants' urgent application for a worldwide freezing order (WWF Order) against the Defendants, which was initially granted by H.E. Justice Roger Stewart on 10 March 2025. Following subsequent hearings, the Court ultimately discharged the injunction, leading the Claimants to seek permission to appeal. The Claimants’ grounds for appeal centered on alleged errors of law regarding the materiality of non-disclosures and the Court’s exercise of discretion in refusing to re-grant the injunction.
In his order dated 11 June 2025, H.E. Justice Roger Stewart rejected these arguments, finding that the Claimants failed to meet the threshold for appellate intervention. The Court emphasized that the non-disclosure of the fact that the order was not in the standard form—particularly after the Court specifically inquired about its status—constituted a clear breach of the duty of fair presentation. The Court held:
Permission to Appeal is refused as none of the Grounds of Appeal, whether considered individually or collectively have real prospects of success and there is no other compelling reason why the appeal should be heard.
The full judgment and order details can be accessed via the DIFC Courts portal: CFI 029/2025
Which judge presided over the application for permission to appeal in EFG v Marj Holding [2025] DIFC CFI 029?
H.E. Justice Roger Stewart presided over this matter in the DIFC Court of First Instance. The order was issued on 11 June 2025, following the Court’s ex tempore judgment delivered on 27 May 2025, which had previously addressed the discharge of the freezing injunction and the associated costs.
What were the specific legal arguments advanced by the Claimants and Defendants regarding the costs of the freezing injunction application?
The Claimants and Defendants submitted competing arguments regarding the appropriate costs to be awarded following the discharge of the injunction. The Defendants sought recovery of costs incurred in defending the application, while the Claimants contested the quantum, specifically challenging the time spent by the Defendants' legal representatives. The Court scrutinized the Claimants' submissions, noting that they failed to provide meaningful insight into the reasonableness of the costs claimed, other than highlighting the hourly rates.
The Court expressed dissatisfaction with the documentation provided by the Claimants, noting:
I do not consider that the Claimants schedules really help as to this save that hourly rates are given;
The Court further noted the intensity of the work performed by the Defendants' counsel, observing:
That in the approximately 2 month period between the initial injunction and 12 May, one partner charged for almost 6 working weeks of work; and
What was the doctrinal issue the Court had to resolve regarding the materiality of non-disclosure in ex parte freezing order applications?
The central legal question was whether the Claimants’ failure to disclose that the proposed freezing order deviated from the standard form—and their subsequent misrepresentation to the Court when questioned on this point—constituted a material non-disclosure sufficient to warrant the discharge of the injunction. The Court had to determine if the "fair presentation" doctrine, as applied in English and DIFC jurisprudence, was breached by the Claimants' failure to highlight these departures and the potential arguments the Defendants might raise.
How did H.E. Justice Roger Stewart apply the test for materiality and fair presentation in his refusal of permission to appeal?
Justice Stewart applied the principles established in Tugushev v Orlov [2019] EWHC 2031 (Comm), emphasizing that the test for materiality is whether the facts are necessary for the judge to know when dealing with an ex parte application. The Court reasoned that any departure from the standard form of an order is inherently material because the Court must be able to justify such deviations.
The Court’s reasoning was clear: the duty of fair presentation requires that the Court have complete confidence in the thoroughness and objectivity of the applicant. By misrepresenting the nature of the order, the Claimants undermined that confidence. The Court further noted that the Claimants' attempt to argue that jurisdictional points were covered in their skeleton argument did not excuse the failure to proactively draw the Court's attention to the Defendants' likely counter-arguments.
Which specific DIFC RDC rules and statutes were applied by the Court in the summary assessment of costs?
The Court relied on RDC 38.30 to conduct an immediate summary assessment of costs. This rule allows the Court to assess costs at the conclusion of a hearing to avoid the necessity of a detailed, and potentially more expensive, assessment process.
Regarding the substantive law, the Court relied heavily on the principles of fair presentation and the exercise of judicial discretion in freezing injunctions, as articulated in the English authority Tugushev v Orlov [2019] EWHC 2031 (Comm). The Court utilized this case to define the scope of an applicant's duty to the Court when seeking urgent, without-notice relief.
How did the Court utilize the precedent of Tugushev v Orlov [2019] EWHC 2031 (Comm) in the context of this DIFC litigation?
The Court utilized Tugushev v Orlov as the primary authority for two distinct purposes. First, it served as the benchmark for the "materiality" test, confirming that facts are material if they are necessary for the judge to properly evaluate the application. Second, it was used to define the "fair presentation" requirement, which mandates that an applicant must ensure the judge has a complete and objective view of the case, including potential defenses. Justice Stewart used these points to demonstrate that the Claimants' failure to disclose the non-standard nature of the freezing order was a fatal flaw in their application.
What was the final disposition of the Court regarding the Claimants' application for permission to appeal and the associated costs?
The Court refused the Claimants' application for permission to appeal. Furthermore, the Court ordered an immediate assessment of costs, requiring the Claimants to pay the Defendants USD 53,530. The Court also granted a limited 14-day stay on the discharge of the freezing injunction to allow the Claimants to approach the Court of Appeal.
The Court’s order regarding costs was explicit:
The Claimants are to pay the sum of USD 53,530 to the Defendants on an immediate assessment of costs within 14 days of today.
Regarding the stay of the injunction, the Court ordered:
The discharge of the current freezing injunction is stayed until 14 days from this Order.
What are the wider implications of this decision for practitioners seeking freezing injunctions in the DIFC?
This decision serves as a stern warning to practitioners regarding the duty of fair presentation. It confirms that the DIFC Court will not tolerate any attempt to mislead the bench, even inadvertently, regarding whether an order conforms to the standard form. Practitioners must be prepared to justify any departure from standard forms in detail. Furthermore, the Court’s willingness to perform an immediate summary assessment of costs under RDC 38.30 signals a move toward curbing disproportionate litigation expenses, ensuring that the "winner" of an interlocutory application is not burdened by the costs of a lengthy assessment process.
Where can I read the full judgment in EFG v Marj Holding [2025] DIFC CFI 029?
The full judgment and order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0292025-1-efg-middle-east-ltd-2-efg-bank-ltd-v-1-marj-holding-limited-2-arj-holding-limited-3-mohammad-ahmad-ramadhan-juma
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Tugushev v Orlov | [2019] EWHC 2031 (Comm) | Established the test for materiality and the duty of fair presentation in ex parte applications. |
Legislation referenced:
- Rules of the DIFC Courts (RDC): RDC 38.30 (Summary Assessment of Costs)