What specific financial liabilities were consolidated into the USD 1,870,000 payment order against Fawzi Musaed Al Saleh and others in CFI 092/2021?
The litigation, involving 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, reached a critical juncture regarding the Appellants' ability to pursue their appeal. Following a series of adverse rulings, including a contempt order, the Court required the Appellants to provide security for various outstanding financial obligations as a condition for the appeal to proceed.
The total sum of USD 1,870,000 was calculated based on four distinct components of previous court orders. These included unpaid sums from the initial freezing order, significant fines levied for contempt, and interim costs awarded to the Claimants. The Court’s order explicitly itemized these liabilities:
The sum of USD 250,000 payable under paragraph 12(1) of the Order dated 30 November 2021; 3.2.
The sum of USD 820,000 in respect of the fines levied by paragraph 10 of the Order dated 25 November 2022; 3.3.
The sum of USD 400,000 payable on account of the Claimants’ costs under paragraph 9 of the Order dated 25 November 2022; and 3.4.
Additionally, the Court included a prospective amount of USD 400,000 to cover the Claimants' costs of the appeal itself. This comprehensive approach ensures that the Claimants are protected against further dissipation of assets while the Appellants seek to challenge the underlying contempt and freezing orders. Full details of the order can be found at the DIFC Courts website.
Which judge presided over the February 2023 hearing in the DIFC Court of First Instance regarding the Second Application for Permission to Appeal?
The hearing, which took place on 6 February 2023, was presided over by Chief Justice Zaki Azmi. Sitting in the Court of First Instance, the Chief Justice heard arguments regarding the Appellants' second attempt to secure permission to appeal the Order dated 25 November 2022, alongside an application for an "Unless Order" filed by the Respondents and a request by the Appellants to exceed the standard page limits for their skeleton arguments.
What were the primary legal arguments advanced by the Appellants and Respondents regarding the Second Application for Permission to Appeal?
The Appellants sought to challenge the Order dated 25 November 2022, which had previously dismissed their first permission application and confirmed a contempt order against them. Their legal strategy focused on securing the right to appeal while simultaneously requesting procedural flexibility, specifically seeking permission to file a skeleton argument exceeding the standard 25-page limit.
Conversely, the Respondents, represented by Sandra Holding Ltd and Nuri Musaed Al Saleh, pushed for an "Unless Order." Their position was that the Appellants had demonstrated a history of non-compliance with court orders—specifically regarding freezing orders and financial penalties—and that any further litigation should be strictly conditional upon the satisfaction of these prior debts. The Respondents argued that without such a condition, the appeal process would merely serve as a mechanism for the Appellants to delay the enforcement of the Court’s previous rulings.
What was the jurisdictional and procedural question the Court had to resolve regarding the imposition of conditions on the right to appeal?
The central question before Chief Justice Zaki Azmi was whether the DIFC Court possesses the authority to impose a "pay-to-play" condition on an appellant as a prerequisite for the listing of an appeal. Specifically, the Court had to determine if it could consolidate outstanding contempt fines, previous cost orders, and prospective appeal costs into a single "Amount" that must be paid into Court by a specific deadline. The issue was not merely whether permission to appeal should be granted, but whether the Court could exercise its case management powers under the Rules of the DIFC Courts (RDC) to ensure the integrity of the enforcement process while the appeal remained pending.
How did Chief Justice Zaki Azmi apply the principle of conditional permission to appeal to ensure compliance with previous orders?
Chief Justice Zaki Azmi utilized the Court’s inherent case management powers to link the Appellants' procedural right to appeal with their substantive obligation to comply with prior court orders. By granting the Second Application for Permission to Appeal, the Court acknowledged the Appellants' right to seek review, but balanced this against the Respondents' right to see the previous orders enforced.
The reasoning was clear: the Appellants could not be permitted to continue litigating while simultaneously ignoring the financial penalties and costs imposed by Justice Sir Jeremy Cooke in November 2022. The Court established a strict "Unless Order" framework, whereby the appeal would only be listed if the full amount was deposited by the deadline.
The sums paid into Court pursuant to paragraph 2 above shall be held until further Order of the Court following the Appeal. 5.
This approach ensures that the funds are preserved in the Court’s custody, effectively acting as security for the Respondents should the appeal fail or be dismissed.
Which specific DIFC Court orders and procedural rules formed the basis for the financial conditions imposed in this case?
The Court’s decision was heavily grounded in the history of the case, specifically referencing the Order dated 30 November 2021 (the worldwide freezing order) and the Order dated 25 November 2022 (the contempt order). The Chief Justice relied on the authority granted by these prior rulings to aggregate the outstanding liabilities.
The calculation of the USD 1,870,000 was derived from:
- Paragraph 12(1) of the Order dated 30 November 2021 (USD 250,000).
- Paragraph 10 of the Order dated 25 November 2022 (USD 820,000 in fines).
- Paragraph 9 of the Order dated 25 November 2022 (USD 400,000 in costs).
- An additional USD 400,000 for the costs of the appeal.
These figures were treated as a consolidated debt that the Appellants were required to satisfy to demonstrate their bona fides in pursuing the appeal.
How did the Court address the Appellants' request to exceed the 25-page limit for their skeleton argument?
The Court granted the Appellants' application to serve a skeleton argument exceeding the standard 25-page limit, recognizing the complexity of the issues involved in the appeal. This procedural concession was granted alongside the permission to appeal, though it remained subject to the overarching condition of the payment into Court. By allowing the extended argument, the Court ensured that the Appellants had a fair opportunity to present their case, provided they met the financial conditions imposed to protect the Respondents.
What was the final disposition regarding the Appellants' application and the allocation of costs for the various motions heard?
The Court granted the Second Application for Permission to Appeal, subject to the strict condition that the Appellants pay USD 1,870,000 into Court by 4:00 PM on 6 March 2023. Failure to meet this deadline would result in the appeal not being listed. Regarding the costs of the various applications heard on 6 February 2023, the Court ordered:
Costs of the Second Permission Application, the Skeleton Argument Application and the Unless Order Application shall be costs in the Appeal. [Q3]
This means that the ultimate liability for these costs will be determined by the outcome of the appeal itself, rather than being settled immediately.
What are the wider implications for DIFC practitioners regarding the use of "Unless Orders" in the context of appeals?
This case serves as a stark reminder that the DIFC Court will not hesitate to use its case management powers to prevent the abuse of the appellate process. Practitioners should anticipate that where there is a history of non-compliance with freezing or contempt orders, the Court will likely impose stringent financial conditions as a prerequisite for any further procedural indulgence.
The consolidation of fines, costs, and security into a single payment order demonstrates a robust approach to enforcement. Litigants must be prepared to satisfy all outstanding financial obligations—even those arising from separate interlocutory orders—before they can expect the Court to facilitate an appeal. This ruling underscores the importance of strict adherence to court-mandated deadlines and financial obligations, as the Court effectively treats the payment into Court as a condition precedent to the exercise of the right to appeal.
Where can I read the full judgment in Sandra Holding Ltd v Fawzi Musaed Al Saleh [2023] DIFC CFI 092?
The full order issued by Chief Justice Zaki Azmi on 9 February 2023 can be accessed via the official DIFC Courts website at the following link: 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-6. A copy is also available via the CDN: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-092-2021_20230209.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Sandra Holding Ltd v Fawzi Musaed Al Saleh | CFI 092/2021 | Primary matter |
Legislation referenced:
- Rules of the DIFC Courts (RDC)
- Judicial Authority Law (DIFC Law No. 12 of 2004)