The DIFC Court of Appeal has affirmed the trial judge’s findings in a high-stakes catering dispute, rejecting the defendant’s attempt to challenge a judgment concerning repudiatory breach and the causal link between food safety failures and commercial losses at the CoP 28 climate conference.
Did Mons Hospitality FZE establish a real prospect of success in appealing the AED 725,047 judgment against Kitopi Catering Services?
The dispute centers on a catering contract for the 28th Conference of the Parties (CoP 28) held in Dubai. Kitopi Catering Services LLC ("Kitopi") sought payment for meal boxes delivered under an agreement with Mons Hospitality FZE ("Mons"). Mons terminated the agreement on 6 December 2023, alleging that Kitopi committed repudiatory breaches by failing to comply with food safety standards, specifically citing an incident involving "mouldy pasta." Mons further contended that these breaches caused the closure of a critical food portal, resulting in substantial financial losses.
The trial judge, H.E. Justice Roger Stewart KC, found that while Kitopi had committed certain breaches of the Dubai Food Code and failed to supply food on 4 and 5 December 2023, these did not constitute repudiatory breaches justifying termination. Furthermore, the court held that any losses stemming from the portal closure were too remote to be recoverable. Mons sought permission to appeal this decision, but the Court of Appeal found the grounds insufficient. As noted in the judgment:
For the reasons which follow, Mons has failed to establish that its proposed appeal has any real prospect of success, or that there is any other compelling reason why the appeal should be heard, and t
The court ultimately dismissed the application, confirming the award of AED 725,047 in favor of Kitopi. This order follows previous procedural developments in the case, including KITOPI CATERING SERVICES v MONS HOSPITALITY [2025] DIFC CFI 081 — Court sanctions parties for disproportionate document production tactics (01 July 2025), KITOPI CATERING SERVICES v MONS HOSPITALITY [2025] DIFC CFI 081 — procedural management of expert evidence (10 November 2025), and KITOPI CATERING SERVICES v MONS HOSPITALITY [2026] DIFC CFI 081 — Enforcing judgment debts and interim costs in the absence of a stay (03 March 2026).
How did H.E. Chief Justice Wayne Martin exercise his appellate jurisdiction in the Court of First Instance matter CFI 081/2024?
The application for permission to appeal was initially directed to the trial judge, H.E. Justice Roger Stewart KC, who referred the matter to the Court of Appeal pursuant to RDC 44.8. H.E. Chief Justice Wayne Martin presided over the determination of the application, issuing the final order on 15 April 2026.
What were the specific legal arguments advanced by Mons Hospitality FZE regarding the alleged repudiatory breach by Kitopi Catering Services?
Mons argued that the trial judge erred in his assessment of the materiality of Kitopi’s breaches. Specifically, Mons contended that the failure to adhere to the Dubai Food Code and the non-supply of food on 4 and 5 December 2023 entitled them to terminate the agreement. Mons sought to challenge the judge’s findings of fact, arguing that the consequences of these breaches were sufficient to constitute a repudiation of the contract, thereby entitling Mons to damages for the losses incurred from the closure of the food portal.
What was the precise doctrinal issue the Court had to answer regarding the threshold for granting permission to appeal?
The court had to determine whether the proposed grounds of appeal met the threshold of having a "real prospect of success" under RDC 44.117. The doctrinal challenge involved the high bar for overturning findings of fact made by a trial judge, particularly where the judge had made specific credibility assessments regarding witness testimony—in this case, the evidence of Mr. Simon Wright, the CEO of Mons.
How did the Court apply the "plainly wrong" test to the trial judge's findings of fact?
The Court of Appeal emphasized that an appellate court will not interfere with factual findings unless the appellant can demonstrate that the trial judge was "plainly wrong." The court scrutinized the trial judge's assessment of whether the proven breaches were of sufficient significance to justify termination. The court noted:
It is common ground that, on an appeal against a judge's findings of fact, the appellant has in general to show that the judge was plainly wrong.
The court further reasoned that the trial judge had correctly identified the legal test for repudiatory breach under English law (the governing law of the contract) and had properly applied it to the facts. The court highlighted the trial judge’s conclusion regarding the remoteness of the damages claimed by Mons:
It follows that any losses caused by the closure of the portal are too remote to be recoverable.”
Which statutes and RDC rules governed the Court’s dismissal of the permission to appeal application?
The court exercised its powers under the Rules of the DIFC Courts (RDC). Specifically, the application was governed by RDC 44.5, which sets the criteria for permission to appeal, and RDC 44.117, which defines the "real prospect of success" test. The court also relied on RDC 44.19 regarding the assessment of costs.
How did the Court utilize English and DIFC precedents to support its decision to dismiss the appeal?
The court relied on Al Khorafi v Bank Sarasin-Alpen (ME) Ltd to reiterate that the burden on an appellant seeking to challenge findings of fact is a "heavy one." Furthermore, the court cited Assicurazioni Generali v. Arab Insurance [2003] 1 WLR 577 and McGraddie v. McGraddie [2013] UKSC 58 to reinforce the principle that appellate courts should be slow to interfere with the factual findings of a trial judge who has had the benefit of hearing the witnesses. The court also referenced Sohal v. Suri [2012] EWCA Civ 1064 in the context of the "real prospect of success" test.
What was the final disposition of the application and the order regarding costs?
The Court of Appeal dismissed the application for permission to appeal in its entirety. Consequently, the defendant was ordered to pay the claimant's costs of the application.
The Defendant shall pay the Claimant’s costs of the Application to be assessed on the standard basis by way of immediate assessment in accordance with the directions which follow.
The court further directed that the quantum of these costs would be assessed on the papers by H.E. Chief Justice Wayne Martin after the parties filed their respective submissions.
The quantum of the Claimant’s costs to paid by the Defendant will thereafter be assessed on the papers by H.E.
What are the practical implications for litigants seeking to appeal factual findings in the DIFC Courts?
This decision serves as a stark reminder of the "heavy burden" placed on appellants who seek to challenge findings of fact. Litigants must anticipate that the DIFC Court of Appeal will defer to the trial judge’s assessment of witness credibility and factual findings unless there is a clear demonstration that the judge was "plainly wrong." Furthermore, the case underscores the strict application of the "real prospect of success" test, which requires that the grounds for appeal be "realistic rather than fanciful."
Where can I read the full judgment in Kitopi Catering Services v Mons Hospitality [2026] DIFC CFI 081?
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Al Khorafi v Bank Sarasin-Alpen (ME) Ltd | DIFC | Established the heavy burden on an appellant challenging findings of fact. |
| Assicurazioni Generali v. Arab Insurance | [2003] 1 WLR 577 | Cited regarding the standard for appellate interference with factual findings. |
| McGraddie v. McGraddie | [2013] UKSC 58 | Cited regarding the deference owed to trial judges' factual findings. |
| Sohal v. Suri | [2012] EWCA Civ 1064 | Cited regarding the "real prospect of success" test. |
Legislation referenced:
- Rules of the DIFC Courts (RDC): RDC 44.5, RDC 44.8, RDC 44.19, RDC 44.117.
- Dubai Food Code (referenced as the standard for breach).
- English Law (as the governing law of the Agreement).