OHTLI v ONORA [2026] DIFC ARB 034 — The High Cost of Procedural Overreach in Anti-Suit Injunctions

How did the Claimant, Ohtli, attempt to challenge the costs order arising from the failed anti-suit injunction against Onora in ARB 034/2025?

The dispute centers on the Claimant’s unsuccessful attempt to secure and maintain an interim anti-suit injunction against the Defendant, Onora. Following the Court’s decision to discharge the interim relief, the Court issued a costs order requiring Ohtli to pay the Defendant’s costs on the standard basis. Ohtli subsequently filed a Permission to Appeal (PTA) Application, seeking to overturn the costs order, which had been quantified at USD 37,897.70.

This is a PTA Application made by the Claimant pursuant to RDC 44.6, seeking permission to appeal in respect of costs only, namely paragraph 3 of the December Order, by which the Claimant was ordered to pay the Defendant’s costs of the Application to set aside the interim anti-suit injunction (the “Set-Aside Application”) on the standard basis.

The Claimant’s challenge was narrow in scope, focusing exclusively on the financial burden imposed by the costs order rather than the underlying substantive decision to discharge the injunction. As noted in the record:

The subsequent assessment and quantification of the Defendant’s recoverable costs in the amount of USD 37,897.70 are set out in the Costs Order and are likewise not repeated.

For further context on the underlying procedural history, see the deep editorial analysis at: Ohtli v Onora [2026] DIFC ARB 034: The High Cost of Procedural Overreach in Anti-Suit Injunctions.

Which judge presided over the PTA Application in Ohtli v Onora [2026] DIFC ARB 034?

The PTA Application and the associated Stayed Costs Application were heard and determined by H.E. Justice Shamlan Al Sawalehi in the Arbitration Division of the DIFC Court of First Instance. The order was issued on February 27, 2026, following a series of procedural filings in January and February 2026 regarding the December 2025 costs order and the subsequent quantification order of January 2026.

What specific legal arguments did Ohtli advance to justify appealing the costs order against Onora?

Ohtli’s counsel argued that the Court’s exercise of its discretion regarding costs was flawed due to a failure to account for the Claimant’s initial success in obtaining the interim anti-suit injunction. The Claimant contended that the Defendant’s conduct throughout the proceedings, including alleged procedural defaults, should have mitigated the costs liability.

The Claimant relies on the fact that interim anti-suit relief was granted and on the Claimant’s contentions regarding the Defendant’s conduct, arguing these should have materially affected the costs outcome.

Ohtli explicitly limited its challenge to the costs aspect, attempting to isolate the financial determination from the substantive discharge of the injunction.

The Claimant submits that the PTA Application is confined to costs. The Claimant expressly states that it does not, at this stage, seek to re-open the substantive decision to discharge the interim anti-suit relief, save to the limited extent that it contends the earlier interim relief and related matters are material to the exercise of the Court’s costs discretion.

What is the doctrinal threshold for granting permission to appeal a discretionary costs order under RDC 44.19?

The Court had to determine whether the Claimant met the criteria for permission to appeal under RDC 44.19, which requires that an appeal have a "real prospect of success" or that there is a "compelling reason" for the appeal to be heard. The doctrinal issue was whether a discretionary costs order—which is inherently evaluative and tied to case management—could be challenged on the basis that the judge failed to weigh specific procedural events (like the initial grant of an interim injunction) in the manner the appellant preferred. The Court assessed whether the appellant could demonstrate an error of principle or a decision so unreasonable that it fell outside the range of permissible outcomes.

How did H.E. Justice Shamlan Al Sawalehi apply the test for procedural fairness and costs discretion?

Justice Al Sawalehi emphasized that costs discretion is not a "mechanistic sanction" for procedural imperfections. The Court evaluated whether the alleged lateness in the Defendant’s filings or the initial interim success of the Claimant necessitated a different costs outcome. The Court concluded that the Claimant failed to meet the high threshold required to disturb a discretionary order.

The Claimant does not demonstrate that any alleged procedural default was of such a nature or degree as to compel a different costs outcome, or that my conclusion fell outside the range of reasonable outcomes. Nor does the Claimant identify any concrete prejudice in the conduct of the hearing that renders the costs decision unjust.

The Court further clarified that the "event" for costs purposes was the successful set-aside of the injunction, not the initial, ex parte grant of the interim relief.

Which RDC rules and statutory provisions were central to the Court’s decision in Ohtli v Onora?

The Court’s decision was primarily governed by RDC 44.6 and RDC 44.19. RDC 44.6 provided the procedural basis for the Claimant’s PTA Application, while RDC 44.19 established the substantive test for granting such permission. The Court also relied on the principle of judicial discretion in costs, which allows the Court to assess costs on the standard basis when a party successfully sets aside an interim order. The Court’s reasoning was anchored in the principle that costs orders are closely connected to case management and the evaluative assessment of justice in the circumstances.

How did the Court distinguish between the "event" of the interim injunction and the "event" of the set-aside application?

The Claimant argued that the Court erred in identifying the successful set-aside application as the "event" for costs purposes. The Court rejected this, holding that the inter partes hearing to set aside the injunction was the definitive event that determined the rights of the parties regarding the interim relief.

The Claimant submits that the Court wrongly identified the “event” as the Defendant’s success on the Set-Aside Application, contending that the Claimant’s earlier interim success should have driven the costs outcome.

Furthermore, the Court addressed the Claimant’s argument regarding procedural default:

The Claimant contends that the Set-Aside Application and/or supporting materials were filed or served late and in a manner said to have caused prejudice, and that this was not addressed in the Costs Order.

The Court found these arguments unpersuasive, noting that procedural lateness does not automatically override the substantive success of a party in a set-aside application.

What was the final disposition of the PTA Application and the Stayed Costs Application?

The Court dismissed the PTA Application in its entirety, finding that the Claimant had failed to establish any real prospect of success or any compelling reason for an appeal. Regarding the Stayed Costs Application, the Court granted partial relief. While the Claimant was still required to pay the costs as quantified in the Costs Order (USD 37,897.70), the Court suspended the accrual of interest on those costs from January 12, 2026, until the date of the February 27, 2026 Order. The Claimant was also ordered to pay the Respondent’s costs of the PTA Application.

What are the wider implications for DIFC practitioners regarding the appeal of costs orders?

This decision reinforces the high threshold for appealing discretionary costs orders in the DIFC Courts. Practitioners must anticipate that the Court will be reluctant to interfere with costs decisions that are closely linked to case management, especially where costs have already been assessed and quantified. The ruling clarifies that interim ex parte relief does not constitute the controlling "event" for costs when that relief is later discharged. Litigants should be wary of pursuing appeals based on alleged procedural defaults that do not rise to the level of a clear error of principle or demonstrable injustice. For further guidance, see the sibling order: OHTLI v ONORA [2025] DIFC ARB 034 — The High Cost of Procedural Overreach in Anti-Suit Injunctions.

Where can I read the full judgment in Ohtli v Onora [2026] DIFC ARB 034?

The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/arbitration/arb-0342025-ohtli-v-onora-1 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/arbitration/DIFC_ARB-034-2025_20260227.txt.

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC) 44.6
• Rules of the DIFC Courts (RDC) 44.19