What specific monetary liabilities were imposed on the Defendants in the final costs assessment of CFI 085/2023?
The dispute centers on the recovery of legal costs incurred by the Second Claimant, Salih Elmascan, following substantive orders issued by Justice Sir Jeremy Cooke earlier in 2024. The litigation, involving Daikan DMCC and Salih Elmascan against Poke and Co Restaurant Ltd and two individual defendants, culminated in a detailed assessment of the Second Claimant’s Bill of Costs. The court ultimately determined that the Second Defendant, Khaled Mohamed Abdel Mageed, bears a primary liability of AED 256,261.45, while the First and Second Defendants are jointly and severally liable for an additional AED 45,637.
The court’s order specifies the breakdown of these figures, which include both the underlying legal costs of the proceedings and the fees associated with the commencement of the costs assessment process itself. The ruling serves as a final determination of the financial obligations owed to the Second Claimant, providing a clear roadmap for enforcement should the defendants fail to satisfy these amounts within the stipulated 21-day window.
Which judicial officer presided over the assessment of the Bill of Costs in CFI 085/2023?
The Final Costs Certificate was issued by Assistant Registrar Delvin Sumo on 2 October 2024. The assessment was conducted within the Court of First Instance of the Dubai International Financial Centre, following the procedural history established by the earlier orders of Justice Sir Jeremy Cooke dated 28 February 2024 and 23 April 2024.
How did the Second Claimant and the Second Defendant approach the procedural requirements for the assessment of costs?
The Second Claimant, Salih Elmascan, initially sought to expedite the recovery of costs by filing two requests for a Default Costs Certificate on 20 June 2024, citing the First and Second Defendants' failure to file Points of Dispute within the 21-day period mandated by RDC 40.15. However, the procedural landscape shifted when the Registry directed the Second Claimant to amend the Bill of Costs to ensure compliance with the DIFC Courts’ Costs Regime and Practice Direction No. 5 of 2014.
Following the filing of an amended Bill of Costs on 9 August 2024, the Second Defendant, Khaled Mohamed Abdel Mageed, submitted Points of Dispute on 29 August 2024. This prompted a further reply from the Second Claimant on 19 September 2024. The parties’ arguments were thus focused on the substantive reasonableness of the costs claimed rather than a purely procedural default, leading the Assistant Registrar to evaluate the merits of the amended bill rather than granting the default request.
What was the precise procedural question the court had to resolve regarding the Second Claimant’s request for a Default Costs Certificate?
The primary legal issue before Assistant Registrar Delvin Sumo was whether the Second Claimant was entitled to a Default Costs Certificate under RDC 40.17, given the defendants' initial failure to file Points of Dispute, or whether the subsequent amendment of the Bill of Costs and the late filing of Points of Dispute necessitated a full substantive assessment. The court had to determine if the procedural requirements of the RDC had been satisfied in a manner that allowed for the finalization of the costs without further litigation, or if the interests of justice required the court to move past the default request and adjudicate the actual quantum of the costs claimed.
How did Assistant Registrar Delvin Sumo apply the RDC framework to the Second Claimant’s request for a Default Costs Certificate?
The Assistant Registrar exercised the court’s discretion to refuse the request for a Default Costs Certificate, opting instead to finalize the costs through a substantive assessment of the amended Bill of Costs. This decision was informed by the procedural history, including the Registry’s intervention regarding the compliance of the initial bill and the subsequent exchange of Points of Dispute and replies. The reasoning followed a structured review of the filings:
UPON the First and Second Defendants’ failure to file its Points of Dispute, pursuant to Rule 40.15 of the Rules of the DIFC Court (the “RDC”), within 21 days from the date of service of the NOC... UPON the Second Claimant’s two requests for a Default Costs Certificate dated 20 June 2024 (the “Request”) pursuant to RDC 40.17... IT IS HEREBY ORDERED THAT: 1. The Request is refused.
By refusing the default request, the court ensured that the final award was based on a verified assessment of the costs incurred, rather than a procedural penalty, thereby balancing the rights of the Second Claimant to recover costs with the defendants’ right to contest the reasonableness of those costs.
Which specific RDC rules and Practice Directions governed the assessment of the Bill of Costs in this matter?
The assessment was governed by the Rules of the DIFC Courts (RDC), specifically Rule 40.15, which dictates the timeline for filing Points of Dispute, and RDC 40.17, which addresses the procedure for requesting a Default Costs Certificate. Furthermore, the court relied on Practice Direction No. 5 of 2014, which sets out the DIFC Courts’ Costs Regime, and Practice Direction No. 4 of 2017, which governs the accrual of post-judgment interest on costs.
How did the court utilize the prior orders of Justice Sir Jeremy Cooke in the final assessment?
The court relied on the Orders with Reasons issued by Justice Sir Jeremy Cooke on 28 February 2024 and 23 April 2024 as the foundational authority for the Second Claimant’s entitlement to costs. These prior orders established the liability of the defendants, providing the necessary legal basis for the Assistant Registrar to proceed with the quantification of the costs in the Bill of Costs dated 27 February 2024 and the amended Bill of Costs dated 9 August 2024.
What is the final disposition and the interest rate applicable to the awarded costs?
The court ordered the Second Defendant to pay AED 256,261.45 and the First and Second Defendants to pay AED 45,637 jointly and severally. These payments must be made within 21 days of the date of the Final Costs Certificate. In the event of non-payment, post-judgment interest will accrue on these amounts at a rate of 9% per annum, pursuant to Practice Direction No. 4 of 2017, starting from the expiration of the 21-day period until the date of full payment.
What does this ruling imply for practitioners regarding the filing of Points of Dispute and Default Costs Certificates?
This case highlights the importance of strict adherence to the procedural timelines set out in RDC 40.15. While the court has the power to grant a Default Costs Certificate under RDC 40.17, practitioners should anticipate that the court will prioritize a substantive assessment if there is any ambiguity or if the Bill of Costs requires amendment to meet the standards of Practice Direction No. 5 of 2014. Litigants must ensure that their Bills of Costs are fully compliant with the DIFC Courts’ regime before seeking default relief, as the Registry may intervene to require amendments, which can effectively reset the procedural clock.
Where can I read the full judgment in DAIKAN DMCC v POKE AND CO RESTAURANT [2024] DIFC CFI 085?
The full Final Costs Certificate can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0852023-1daikan-dmcc-2salih-elmascan-v-1-poke-and-co-restaurant-ltd-2-khaled-mohamed-abdel-mageed-3-rannia-el-basyuni-2 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-085-2023_20241002.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific case law precedents were cited in the text of this Final Costs Certificate. |
Legislation referenced:
- Rules of the DIFC Courts (RDC): Rule 40.15, RDC 40.17
- Practice Direction No. 5 of 2014 (DIFC Courts’ Costs Regime)
- Practice Direction No. 4 of 2017 (Interest on Judgments)