Justice Sir Jeremy Cooke denies the Defendants' application for a stay of the 25 November 2022 Order, citing the failure to purge contempt and the prior refusal of permission to appeal.
Why did the Defendants in CFI 092/2021 seek a stay of the Order dated 25 November 2022?
The underlying dispute in CFI 092/2021 involves Sandra Holding Ltd and Nuri Musaed Al Saleh as Claimants against Fawzi Musaed Al Saleh, Ahmed Fawzi Al Saleh, Yasmine Fawzi Al Saleh, and Farah El Merabi. The litigation centers on the Defendants' failure to comply with previous court orders, which resulted in a finding of contempt and the imposition of financial penalties. The Defendants sought a stay of the 25 November 2022 Order, which essentially required them to purge their contempt and satisfy the court’s directives.
The Defendants filed an Appeal Notice on 16 December 2022, seeking permission to appeal the Court’s earlier findings. By requesting a stay, the Defendants aimed to halt the enforcement of the 25 November 2022 Order, including the potential referral to the Attorney General, while their appeal process remained pending. The Court’s refusal to grant this stay ensures that the legal obligations imposed upon the Defendants remain active despite their ongoing attempts to challenge the judgment. As noted in the Court’s reasoning:
When the Court of Appeal considers the Further Application for Permission to Appeal, it should also consider, if permission is granted or is found to be unnecessary, whether or not there should be a stay.
Which judge presided over the application for a stay in the DIFC Court of First Instance on 16 January 2023?
Justice Sir Jeremy Cooke presided over this matter in the Court of First Instance. The Order with Reasons was issued on 16 January 2023, following a review of the Claimants' evidence submitted on 11 January 2023 and the Defendants' reply evidence submitted on 12 January 2023.
What arguments did the Defendants advance in their Request for a Stay following the 25 November 2022 Order?
The Defendants, represented in their filings, argued that a stay of execution was necessary pending the outcome of their Further Application for Permission to Appeal. Their primary objective was to suspend the coercive measures attached to the 25 November 2022 Order, specifically the financial penalties and the looming threat of a referral to the Attorney General for contempt of court.
Conversely, the Claimants resisted the application, highlighting the Defendants' continued non-compliance. The Claimants’ evidence, reviewed by the Court on 11 January 2023, emphasized that the Defendants had failed to purge their contempt and had not paid the fines previously imposed by the Court. The Court ultimately found that the Defendants' failure to obey the original order weighed heavily against the granting of any discretionary relief, such as a stay.
What was the precise legal question regarding the Court’s authority to grant a stay when permission to appeal has been refused?
The Court had to determine whether it was appropriate to grant a stay of execution when the Court of First Instance had already refused permission to appeal. The doctrinal issue centered on the exercise of the Court’s discretion under the Rules of the DIFC Courts (RDC) to pause enforcement proceedings when the applicant has failed to demonstrate a sufficient basis for an appeal and has simultaneously failed to comply with existing court orders. The Court had to weigh the procedural rights of the Defendants to seek an appeal against the integrity of the Court’s own orders, particularly in the context of unpurged contempt.
How did Justice Sir Jeremy Cooke apply the principle of non-compliance to the Defendants' Request for a Stay?
Justice Sir Jeremy Cooke’s reasoning was rooted in the principle that a party in contempt who has not purged that contempt is generally not entitled to discretionary relief from the Court. The Judge observed that the Defendants had not only failed to obey the original order but had also failed to pay the fines associated with their contempt.
The Court reasoned that the only practical effect of a stay would be to delay the referral to the Attorney General. However, the Court noted that such a referral was unlikely to proceed while the appeal process remained active regardless of the stay. The Court’s decision was explicitly linked to the prior refusal of permission to appeal, creating a clear nexus between the lack of appellate merit and the denial of a stay. As stated in the schedule of reasons:
The Court of First Instance refused permission to appeal, should it be necessary. The Request for a Stay is refused for that reason.
Which specific DIFC statutes and rules governed the Court’s decision-making process in this application?
The Court’s decision was governed by the Rules of the DIFC Courts (RDC), specifically those pertaining to applications for stays of execution pending appeal. While the Order does not cite specific RDC numbers, it operates under the inherent jurisdiction of the Court of First Instance to manage its own orders and ensure compliance with its judgments. The Court also considered the procedural requirements for filing an Appeal Notice under the DIFC Court’s appellate framework, which dictates the timeline and conditions under which a stay may be requested.
How did the Court distinguish the role of the Court of First Instance from the Court of Appeal regarding the stay?
The Court clarified that while it had the power to refuse the stay, the ultimate determination regarding the suspension of enforcement during the appellate process rests with the Court of Appeal. By refusing the stay, Justice Sir Jeremy Cooke maintained the status quo, ensuring that the Defendants remained under the pressure of the original order. The Court effectively deferred the final decision on the stay to the Court of Appeal, should that body decide to grant permission to appeal. This approach ensures that the Court of First Instance does not inadvertently interfere with the appellate court’s case management powers while simultaneously upholding the sanctity of its own prior orders.
What was the final outcome of the application heard on 16 January 2023?
The Court issued a definitive order refusing the Defendants' Request for a Stay. The disposition was clear: the Defendants’ application was denied in its entirety. Consequently, the obligations set out in the 25 November 2022 Order, including the payment of fines and the requirement to purge contempt, remained in full force and effect. The Court did not award costs in this specific order, but the refusal of the stay meant that the Defendants remained exposed to the full range of enforcement actions available to the Claimants.
What are the practical implications for litigants seeking a stay of execution in the DIFC after this ruling?
This case serves as a reminder that the DIFC Courts are unlikely to grant a stay of execution to a party that has failed to purge its contempt or comply with existing financial obligations. Practitioners must anticipate that evidence of non-compliance will be a primary factor in the Court’s exercise of discretion. Furthermore, where permission to appeal has been refused by the Court of First Instance, the threshold for obtaining a stay becomes significantly higher. Litigants should be prepared to address the status of their compliance with previous orders as a prerequisite for any application for discretionary relief.
Where can I read the full judgment in Sandra Holding Ltd v Fawzi Musaed Al Saleh [2023] DIFC CFI 092?
The full judgment can be accessed via the DIFC Courts website at: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0922021-1-sandra-holding-ltd-2-nuri-musaed-al-saleh-v-1-fawzi-musaed-al-saleh-2-ahmed-fawzi-al-saleh-3-yasmine-fawzi-al-sale-4. A copy is also available via CDN at: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-092-2021_20230116.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external authorities cited in this specific Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) (General procedural framework)