The DIFC Court of First Instance provides a clear warning to practitioners regarding the recovery of costs on a standard basis, specifically emphasizing that contingency-based success fees are not recoverable and that skeleton arguments must reflect the efficiency of recycling previous submissions.
What was the total value of the costs claimed by Michael George Forbes in CFI 081/2023 and why did Robert Kidd challenge the assessment?
The dispute centered on the assessment of costs following the dismissal of the Defendant’s Renewed Application for Permission to Appeal and associated Application for Leave to Adduce New Evidence. The Claimant, Michael George Forbes, sought to recover a total of USD 30,589.16 from the Defendant, Robert Kidd. This sum was primarily comprised of senior counsel fees, fees for former legal representatives, and costs associated with the preparation of the Statement of Costs.
The Defendant challenged the claim on two primary grounds. First, he argued that the Claimant’s Statement of Costs was procedurally defective due to a one-day delay in filing. Second, he contended that the total amount claimed was disproportionate to the work performed, citing comparisons to other appellate permission applications and arguing that the individual components of the bill were excessive. As noted in the Court's reasoning:
The Defendant objects to the costs claimed in their entirety on the ground that the Statement of Costs was filed one day later than the time allowed for service of the Statement in the directions made on 16 December 2025.The Defendant does not suggest that any prejudice was occasioned by the slight delay.
Which judge presided over the costs assessment in Michael George Forbes v Robert Kidd and in which division did the hearing take place?
The assessment was conducted by H.E. Chief Justice Wayne Martin, sitting in the DIFC Court of First Instance. The Order with Reasons was issued on 29 January 2026, following the underlying dismissal of the Defendant's applications on 16 December 2025.
What specific legal arguments did Robert Kidd advance regarding the proportionality of the costs claimed by Michael George Forbes?
The Defendant, Robert Kidd, argued that the costs claimed by the Claimant were not proportionate to the actual work performed. He sought to benchmark the claim against costs assessed in other similar cases involving applications for permission to appeal. Furthermore, the Defendant specifically targeted the senior counsel fees, noting that the grounds for the Renewed Application were identical to those in the Initial Application, meaning the work required for the skeleton argument should have been minimal. The Defendant also highlighted that the fees included a contingency-based "success fee," which he argued should not be recoverable on a standard basis.
What was the primary doctrinal issue the Court had to resolve regarding the assessment of costs on a standard basis?
The Court was required to determine the appropriate quantum of costs to be awarded on a "standard basis" under the Rules of the DIFC Courts (RDC). The core issue was whether the Claimant could recover fees that were inflated by a contingency-based success fee arrangement and whether the time spent by senior counsel on a skeleton argument was reasonable given that the legal arguments had been previously articulated in an earlier application. The Court had to balance the principle of indemnifying the successful party against the requirement that costs be proportionate and reasonable.
How did H.E. Chief Justice Wayne Martin apply the principle of proportionality to the senior counsel fees in this case?
Chief Justice Wayne Martin applied a strict test of reasonableness, noting that the work performed did not justify the high fees claimed. He emphasized that because the grounds of appeal were repetitive, the legal work should have been streamlined. The Court explicitly rejected the inclusion of a contingency-based success fee within a standard costs assessment. As the Chief Justice reasoned:
The grounds of the Renewed Application were identical to the Initial Application for Permission to Appeal. The skeleton could, and should, have been based upon the skeleton that was filed in opposition to the Initial Application, which would not have required a great deal of work. Further, the amount paid to counsel includes a “success fee” because counsel agreed to render fees on a contingency basis.
Which specific DIFC rules and procedural standards governed the Court’s assessment of the costs in this matter?
The assessment was governed by the RDC provisions regarding the assessment of costs on a standard basis. The Court relied on the principle that costs must be proportionate to the work involved. While the Defendant attempted to rely on comparisons to other cases, the Court rejected this approach, noting that each case must be assessed on its own merits. The Court referenced the procedural history established in the Order of 16 December 2025, which mandated the assessment of costs following the dismissal of the Defendant's applications.
How did the Court address the Defendant’s attempt to use "comparative case law" to argue that the costs were excessive?
The Court dismissed the Defendant’s reliance on costs assessed in other appellate permission applications. Chief Justice Wayne Martin clarified that such comparisons are of limited utility because the assessment of costs is a fact-specific exercise. The Court’s reasoning was clear:
Contentions of that kind are of little or no assistance, given that the amount of costs properly allowed in each case will turn upon the particular facts and circumstances of that case.
What was the final disposition of the costs assessment and what specific orders were made by the Court?
The Court ultimately rejected the Defendant’s objection regarding the one-day delay in filing, finding it lacked merit as no prejudice was suffered. However, the Court agreed that the total claim of USD 30,589.16 was excessive. The Court allowed the fees for former lawyers and the independent contractor as reasonable, but significantly reduced the senior counsel fees and the costs associated with the Statement of Costs. The Court ordered that the costs be assessed in the total amount of USD 17,000.00.
What are the wider implications of this ruling for practitioners regarding the recovery of costs in the DIFC?
This ruling serves as a significant reminder that the DIFC Courts will not permit the recovery of contingency-based success fees when costs are assessed on a standard basis. Practitioners must ensure that their costs claims are proportionate and that they do not attempt to pass on the costs of inefficient legal work—such as drafting new skeleton arguments when existing ones would suffice—to the opposing party. The decision reinforces the Court's broad discretion to prune excessive claims and confirms that procedural technicalities, such as a minor one-day delay, will not be used to defeat a costs claim in the absence of prejudice.
Where can I read the full judgment in Michael George Forbes v Robert Kidd [2026] DIFC CFI 081?
The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0812023-michael-george-forbes-v-robert-kidd-4
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case law was cited in the Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) - General provisions on costs assessment.