On 26 May 2023, Justice Lord Angus Glennie delivered a final, decisive blow to Five Real Estate Development’s attempts to reopen a settled construction account, ordering the developer to pay AED 17,028,125.19 to Reem Emirates Aluminium. This order followed a protracted three-year battle that saw the claimant’s initial AED 7.7 million claim struck out in its entirety, only to be replaced by a series of failed procedural maneuvers and a substantial counterclaim. The final hearing, held on 25 May 2023, marked the end of a dispute that had already seen the claimant’s primary delay analysis dismissed as 'flawed and unsupported by evidence' in the March 2023 judgment.
For cross-border construction counsel, this case serves as a stark warning against the 'kitchen sink' approach to post-judgment disputes. The litigation demonstrates the DIFC Courts' increasing intolerance for parties attempting to re-litigate settled trial evidence under the guise of 'Points of Dispute' during the final account phase. By enforcing strict cut-off dates for claims and refusing to allow the reopening of trial-admitted figures, the Court has signaled that the finality of a judgment is not merely a suggestion, but a procedural barrier that will be rigorously defended against tactical obstruction.
How Did the Dispute Between Five Real Estate and Reem Emirates Arise?
The commercial genesis of the litigation lies in the ambitious development of the FIVE JVC Hotel, a prominent hospitality project in Jumeirah Village Circle, Dubai. FIVE Real Estate Development LLC, acting as the developer and employer, engaged China State Engineering Company as the main contractor. To execute the specialized facade elements, FIVE directly engaged Reem Emirates Aluminium LLC. The contractual architecture governing this relationship was a Sub-Contract Agreement dated 29 May 2018, which incorporated the widely utilized FIDIC 1999 Conditions of Contract for Construction. The adjusted contract price was set at AED 49,179,350.60.
What began as a standard procurement arrangement rapidly devolved into a complex web of delay claims, counter-claims, and procedural maneuvering. The FIDIC machinery, designed to provide a structured mechanism for resolving variations and extensions of time, instead became the primary battleground. As the project timeline slipped, the parties clashed over the attribution of critical path delays, the valuation of variations, and the financial fallout of a fire incident on site. The dispute crystallized around a formal determination dated 4 March 2020 issued by the Engineer appointed under the Sub-Contract.
The Engineer’s Determination was intended to provide a definitive financial reconciliation. It calculated the revised contract value at AED 41,334,961.90. To reach this figure, the Engineer started with the original contract value of AED 47 million, added agreed variations, and then applied a series of deductions, including disputed variations, delay penalties amounting to over AED 4.5 million, and various contra charges. Rather than accepting this net valuation as the baseline for final payment, FIVE adopted an aggressive and ultimately flawed legal strategy. The developer attempted to weaponize the deductions listed in the Engineer's Determination, treating them not as accounting adjustments already factored into the final sum, but as independent, actionable debts owed by the sub-contractor.
On 27 October 2020, FIVE initiated proceedings in the Technology and Construction Division of the DIFC Courts. The formulation of the claim revealed a fundamental misapprehension of the contractual certification process:
On 27 October 2020, the Claimant issued its Claim Form claiming AED 7,744,388.00 “compromising the descoping/cost savings, liquidated damages and contra charges” and averring that the Defendant was in breach of Clause 3.5 of FIDIC for failing “to give effect to the Determination”.
Reem responded by applying for immediate judgment, arguing that the claim was entirely misconceived. The sub-contractor pointed out the obvious mathematical and contractual reality: the AED 7.7 million in deductions had already been subtracted by the Engineer to arrive at the AED 41.3 million revised contract value. FIVE was effectively attempting to double-dip, seeking to recover sums that had already been deducted from Reem's entitlement.
In May 2021, Justice Sir Richard Field delivered a decisive immediate judgment on the whole of the Claimant’s claim. The Court dismantled FIVE's interpretation of the Engineer's Determination, finding that the developer's attempt to extract an independent cause of action from the calculation methodology was legally unsustainable. Justice Sir Richard Field articulated the fatal flaw in the developer's logic:
It follows, and I so find, that the Claimant has no viable case based on the Determination on which it relies for its claim that the Defendant owes the Claimant the AED 7,744,388.70.
The dismissal of the primary claim did not end the hostilities; it merely forced a change in tactics. Having lost its direct contractual attack based on the Engineer's Determination, FIVE sought to amend its pleadings to introduce entirely new causes of action. Simultaneously, Reem filed a substantial counterclaim, seeking the unpaid balance of the AED 41.3 million determined by the Engineer, alongside significant prolongation costs for the extended duration it was forced to remain on site. The procedural landscape grew more complex when FIVE initiated a separate action, which was subsequently consolidated with case number TCD-003-2021 by an order from H.E. Justice Nassir Al Nasser in November 2021. This consolidation brought all outstanding disputes between the parties under a single judicial umbrella, setting the stage for a comprehensive trial. The procedural maneuvering mirrors the aggressive litigation tactics frequently observed in high-stakes DIFC construction disputes, echoing the dynamic seen in ARB-004-2022: Muzama v Mihanti [2022] DIFC ARB 004, where parties similarly tested the boundaries of permissible claims and counterclaims following initial jurisdictional or substantive setbacks.
By the time the matter reached trial before Justice Lord Angus Glennie in June 2022, the dispute had morphed from a narrow argument over an Engineer's Determination into a full-scale forensic examination of the project's delays and defects. The developer's amended case rested on three distinct pillars:
FIVE, as the Claimant in this action, advances three claims: Claim 1, a claim for an indemnity; Claim 2, a delay claim; and Claim 3, a defects claim.
The indemnity claim represented a particularly novel, albeit unsuccessful, attempt to bypass the rigorous evidentiary requirements of a standard breach of contract claim. FIVE argued that Clause 4.10 of the FIDIC conditions provided a broad indemnity that allowed it to recover costs without strictly proving that Reem's breaches caused the specific losses. Justice Lord Angus Glennie firmly rejected this interpretation, grounding his analysis in the fundamental principles of UAE civil law, which governs the substantive obligations under the contract. The Court clarified that an indemnity cannot operate in a vacuum; it requires a triggering event, which in the context of construction delays, necessitates establishing a clear breach of obligation by the indemnifying party.
It follows, in my opinion, that, at least in the circumstances of the present case, a successful claim to an indemnity under clause 4.10 necessarily involves proof of breach by Reem – in which case the claim would be excluded by clause 8.7.
The failure of the indemnity argument forced FIVE to rely on its primary delay analysis, which the Court ultimately found to be fundamentally flawed and unsupported by the contemporaneous evidence. The evidentiary collapse of the developer's case cleared the path for Reem's counterclaim. The sub-contractor successfully demonstrated that the critical delays during the final phases of the project were attributable not to its own facade works, but to the failures of the main contractor and other direct contractors engaged by FIVE.
The Court's rigorous approach to the delay evidence underscores the DIFC Courts' intolerance for theoretical or retrospective delay analyses that do not align with the factual reality recorded in site minutes and progress reports. Reem's ability to substantiate its continued presence on site and the associated overheads resulted in a substantial award for the extended duration of the works. Justice Lord Angus Glennie quantified this entitlement precisely:
I hold that Reem are entitled to recover prolongation costs for the period from 8 November 2017 to 2 September 2019 in the sum of AED 6,898,245.88.
The resolution of the dispute required the Court to untangle years of contested variations, disputed site instructions, and conflicting expert testimonies. The final judgment not only dismissed FIVE's sprawling claims in their entirety but also vindicated Reem's defensive strategy and its affirmative claims for prolongation and unpaid certified sums. The developer was ultimately ordered to pay the sub-contractor's costs, to be assessed by the Registrar on the standard basis if not agreed, marking a comprehensive defeat for FIVE's litigation strategy. The trajectory of the case, from the initial strike-out of the AED 7.7 million claim to the final multi-million dirham judgment in favor of the sub-contractor, serves as a stark doctrinal warning regarding the misapplication of FIDIC certification mechanisms and the high evidentiary bar required to sustain delay and indemnity claims under UAE law within the DIFC jurisdiction. The consolidation with TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re ensured that the Court could deliver a final, holistic adjudication of the commercial relationship, preventing further fragmentation of the dispute.
How Did the Court Strike Out the Claimant’s Initial AED 7.7 Million Claim?
The demise of Five Real Estate Development LLC’s initial claim against Reem Emirates Aluminium LLC was not merely a matter of insufficient evidence; it was a consequence of fundamental logical and mathematical impossibility. The dispute, rooted in a Sub-Contract Agreement for aluminum and glazing works at the Five Palm Jumeirah project, was governed by the widely utilized FIDIC 1999 Conditions of Contract. Under this framework, the project’s Engineer issued a determination on 4 March 2020, which served as the catalyst for the ensuing litigation. However, rather than utilizing the Engineer’s Determination as a shield against further liability, the Claimant attempted to weaponize it as a sword to extract an affirmative payment—a strategy that fundamentally misapprehended the mechanics of construction accounting and the strictures of the Rules of the DIFC Courts (RDC).
On 27 October 2020, the Claimant [issued its Claim Form claiming AED 7,744,388.00](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20210504.txt#:~:text=On%2027%20October%202020%2C
Why Did the Court Reject the Claimant’s Attempt to Appeal the Strike-Out?
The conceptual impossibility of amending a voided legal instrument lies at the heart of the DIFC Courts’ refusal to entertain Five Real Estate Development LLC’s procedural maneuvers following the dismissal of its primary case. In commercial litigation, a strike-out order does not merely pause or defectively brand a pleading; it operates as a total erasure of the action from the court’s active docket. The claimant’s subsequent efforts to bypass this fatal outcome by pursuing an amendment to a non-existent claim forced the Technology and Construction Division (TCD) to explicitly define the existential boundaries of struck-out pleadings. The court established, with punishing clarity, that a struck-out claim is a legal nullity that cannot be revived through amendment, treating the claimant’s persistent appeals as an abuse of process deserving of indemnity costs.
The procedural chronology of the dispute dictated the inevitable failure of the claimant’s strategy. On 15 March 2021, Reem Emirates Aluminium LLC filed an application to strike out the whole of the Claimant’s claim. Rather than filing substantive submissions in opposition to this existential threat, the claimant informed the defendant and the court that it would not oppose the application. Instead, in a delayed and structurally flawed pivot, the claimant issued an Amendment Application on 25 April 2021, seeking to expand its case by adding claims for: (i) an indemnity against the Defendant in respect of losses suffered by project delays, and further claims for defects.
This tactical decision to ignore the pending strike-out while attempting to bolt new causes of action onto a collapsing foundation proved disastrous. On 4 May 2021, Justice Sir Richard Field issued the Strike Out Order, effectively terminating the primary litigation. The legal mechanics of this sequence were straightforward: the court must resolve an existential challenge to a claim before it can entertain modifications to that claim's parameters.
Justice Sir Richard Field articulated this chronological and logical priority in his 8 June 2021 judgment dismissing the claimant's first application for permission to appeal, stating that the Strike Out Application, having been issued long before the amendment application, was decided first, as was entirely proper and to be expected by both parties. In the result, the strike out application succeeded and the whole of the Claimant’s claim was struck out by the Strike Out Order (DIFC TCD-009-2020, 8 June 2021, para 11).
Despite the absolute nature of the 4 May 2021 order, the claimant refused to accept the nullification of its amendment application. On 9 May 2021, the claimant emailed the DIFC Courts Registry, demanding the issuance of directions on the Amendment Application on the premise that the defendant’s time to respond had expired. The Registry’s response on 10 May 2021 informed the claimant that the application was dismissed by reason of the Strike Out Order, adding a crucial caveat that if the claimant wished to pursue those new claims, it might be allowed to bring a further claim provided it was not captured by res judicata.
While Justice Sir Richard Field acknowledged that the Registry’s communication was not very happily worded but its essential meaning was discernible, the legal reality remained absolute. A claim that has been struck out no longer exists; therefore, it cannot be amended. The claimant’s insistence on pursuing the appeal drew a severe rebuke from the court. Justice Sir Richard Field found the application to be "hopelessly devoid of merit" and utilized the court's punitive costs jurisdiction to penalize the procedural obstruction. The court ordered the claimant to pay the defendant’s costs of opposing the application on an indemnity basis, subject to immediate summary assessment by the Registrar.
The imposition of indemnity costs in the DIFC Courts is a high-threshold sanction, typically reserved for conduct that falls outside the norm of reasonable commercial litigation. By pursuing an appeal that defied fundamental principles of civil procedure, the claimant crossed that threshold. The court's approach here mirrors the strict stance against procedural gamesmanship seen in other DIFC appellate decisions, such as ARB 027/2024: ARB 027/2024 Nalani v Netty, where the judiciary has consistently penalized parties who utilize meritless appeals to obstruct the finality of clear judicial or arbitral orders.
Undeterred by the indemnity costs order, the claimant escalated the matter, filing a Second Appeal Notice on 29 June 2021, seeking permission to appeal Justice Sir Richard Field’s judgment before Chief Justice Zaki Azmi. The claimant’s primary argument—its gravamen against the decision was that the Judge did not give reasons for refusing the application to amend.
Chief Justice Zaki Azmi’s 29 July 2021 Order with Reasons systematically dismantled this argument, reinforcing the doctrinal finality of the strike-out. The Chief Justice noted that a second application for permission to appeal is effectively a request to reconsider the first, requiring the appellant to meet the strict criteria of the Rules of the DIFC Courts (RDC)—namely, demonstrating a real prospect of success or some other compelling reason why the appeal should be heard.
Reviewing the file, Chief Justice Zaki Azmi concluded that the appellant failed to show he will be able to cross this threshold. The assertion that Justice Sir Richard Field failed to provide reasons was factually and logically flawed. The reason for the dismissal of the amendment application was the strike-out itself. As Chief Justice Zaki Azmi observed, the logic was so absolute that it did not require the citation of external authorities. The nullification of the amendment application was the inescapable, automatic consequence of the primary claim’s destruction.
To emphasize the unreasonableness of the claimant’s position, Chief Justice Zaki Azmi quoted Justice Sir Richard Field’s earlier, forceful dismissal, noting that Justice Field had stated: “In my judgment, the Claimant’s proposed appeal is wholly without merit and would have no realistic prospect of success. Any competent practising litigant lawyer should have appreciated that it followed as night follows day that the Amendment Application was nullified and ceased to be maintainable by reason of the Strike Out Order without the need for an order or direction to this effect being issued by the Court. The application for permission to appeal is therefore hopelessly devoid of merit” (DIFC TCD-009-2020, 29 July 2021, para 5, quoting Justice Field).
The "night follows day" analogy deployed by the court serves as a definitive statement on DIFC procedural law regarding struck-out claims. The court does not need to issue a separate, bespoke order dismissing every pending interim application attached to a claim once the foundational claim itself is struck out. The superstructure collapses automatically when the foundation is removed. Any competent practitioner operating within the DIFC jurisdiction is expected to understand this fundamental mechanic of civil procedure.
The dismissal of the Second Permission Application by Chief Justice Zaki Azmi, accompanied by a further costs order against the claimant on the standard basis, closed the door on the claimant's attempts to resurrect its initial AED 7.7 million claim through procedural loopholes. The claimant was forced to accept that if it wished to pursue the indemnity and defect claims, it would have to initiate entirely new proceedings, subject to the perilous hurdles of limitation periods and res judicata defenses.
This rigid enforcement of procedural boundaries proved critical in the wider context of the dispute between Five Real Estate Development and Reem Emirates Aluminium. By shutting down the phantom amendment application, the TCD cleared the docket of the claimant's struck-out primary case, allowing the court to focus on the defendant's substantial counterclaim. The failure of the claimant's procedural strategy here set the stage for the protracted battles over delay analysis and final account valuations that would ultimately culminate in the decisive May 2023 judgment. The court's handling of the strike-out appeal demonstrates a broader judicial philosophy within the TCD: complex construction disputes must be litigated on the basis of structurally sound pleadings, and the court will aggressively prune dead branches from the litigation tree to prevent parties from using procedural confusion as a tactical weapon. The related proceedings in TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re further illustrate the extensive and highly contested nature of the litigation between these parties, reinforcing the necessity for the court's strict adherence to procedural finality.
What Was the Impact of Consolidating TCD 009/2020 and TCD 003/2021?
The landscape of the dispute prior to November 2021 was defined by procedural fragmentation. Five Real Estate Development LLC and Reem Emirates Aluminium LLC were entangled in a bifurcated legal battle, with claims and counterclaims split across two distinct dockets. The existence of TCD 009/2020 operating in parallel with TCD 003/2021 created a structural vulnerability in the litigation. Construction disputes, by their doctrinal nature, demand a holistic assessment of the final account. When a developer's affirmative claim for delay damages is severed from a contractor's counterclaim for unpaid variations and prolongation costs, the court risks issuing conflicting judgments or permitting duplicative recovery. H.E. Justice Nassir Al Nasser recognized that allowing these dual tracks to proceed independently would subvert the efficiency of the Technology and Construction Division (TCD) and provide fertile ground for procedural obstruction.
The Case Management Conference on 17 November 2021 served as the critical inflection point. Rather than merely coordinating the timetables of the two actions, Justice Al Nasser engineered a hard procedural reset. The resulting order dismantled the fragmented architecture of the dispute, forcing both parties into a single, unified arena.
The Registrar shall take all administrative steps to consolidate these proceedings and TCD-003-2021, into a single proceeding, using this proceeding number “TCD-009-2020”.
This administrative merger, directing the registry to [consolidate these proceedings](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=The%20Registrar%20shall%20take%20all%20administrative%20steps) into a singular entity, carried profound substantive implications. By folding TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re into the older 2020 proceedings, the court eliminated any tactical advantage Five Real Estate Development might have sought through staggered litigation. The consolidation mandated that all claims, counterclaims, and delay analyses be weighed simultaneously, ensuring a zero-sum adjudication of the final account. To ensure absolute clarity on the scope of the merged action, the court explicitly bound both dockets to the new timeline.
For the avoidance of doubt, this Case Management Order will apply to both cases which shall now jointly bear case number “TCD-009-2020”.
With the claims consolidated, the TCD imposed a relentless, structured timeline designed to drive the parties toward a definitive trial. The 18 November 2021 Case Management Order established rigid deadlines that left no room for the procedural drift that often plagues complex construction disputes. The court directed that [Standard production of documents](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=Standard%20production%20of%20documents%20shall%20be%20made) be completed by 10 January 2022, initiating a rapid sequence of disclosure and evidentiary exchanges. To prevent discovery from becoming a bottleneck, the court set a tight turnaround for the Request to Produce mechanism. The order stipulated that [Where objections to any Requests to Produce](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=Where%20objections%20to%20any%20Requests%20to%20Produce) were raised, the TCD would determine those objections and issue a disclosure order within a mere seven days.
The strict enforcement of these deadlines mirrors the DIFC Courts' broader intolerance for procedural obstruction, a judicial posture similarly evident in the strict limits placed on late amendments and jurisdictional challenges in ARB-004-2022: Muzama v Mihanti [2022] DIFC ARB 004. In the consolidated TCD 009/2020, the court required that [Witness Statements in support](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=Witness%20Statements%20in%20support%20of%20the%20Claimant) of both the Claimant's and Defendant's cases be submitted simultaneously by 15 March 2022. This concurrent exchange prevented either party from tailoring its factual narrative to the other's evidence, forcing Five Real Estate Development to commit to a delay analysis that would ultimately collapse under judicial scrutiny.
The consolidation also necessitated a highly coordinated approach to expert evidence. In construction litigation of this magnitude, where the technical assessment of critical path delays and forensic accounting dictates the outcome, uncoordinated expert testimony is fatal to judicial efficiency. The original November 2021 order had set a baseline for expert reports, but as the consolidated trial approached, the complexity of the merged claims required a more refined mechanism for distilling the technical disputes.
On 13 May 2022, Registrar Nour Hineidi issued a Consent Order that adapted the expert evidence phase to the realities of the consolidated action. The parties had already filed their primary technical evidence, with the court noting the [expert report of Stephen Millington](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20220513.txt#:~:text=the%20Claimant%20filing%20the%20expert%20report%20of%20Stephen%20Millington) for the Claimant and Paul Craig for the Defendant. To prevent the trial from devolving into a protracted cross-examination on peripheral technicalities, the May 2022 order restructured the expert engagement.
The Case Management Order of H.E Justice Nassir Al Nasser dated 18 November 2021 is amended, to the effect that paragraph 13 is deleted.
By deleting paragraph 13 of the original Case Management Order—which had mandated supplemental expert reports by 19 April 2022—the court shifted the focus from adversarial report-writing to collaborative issue-narrowing. The TCD directed the experts, including Jimmy LOH Yew Hone and Lee Sporle, to meet and draft joint memoranda under RDC 31.63. This procedural pivot forced the experts to explicitly identify where their opinions aligned and where they diverged, effectively mapping the technical battlefield for the trial judge and eliminating the "ships passing in the night" phenomenon common in poorly managed construction disputes.
To facilitate this streamlined expert phase, the court utilized the mechanisms of RDC Part 28 to bypass cumbersome document requests. Rather than requiring the parties to formally request the underlying data relied upon by the opposing experts, the May 2022 Consent Order imposed an automatic disclosure mechanism.
The Claimant is deemed to have produced pursuant to RDC 28.15, all documents referenced in the expert reports of Jimmy LOH Yew Hone and Stephen Millington.
This automatic deeming provision, anchored by the directive that the Claimant was [deemed to have produced pursuant to RDC 28.15](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20220513.txt#:~:text=The%20Claimant%20is%20deemed%20to%20have%20produced%20pursuant%20to%20RDC%2028.15), stripped away another layer of potential procedural friction. It ensured that when the experts met to draft their joint memoranda, they had immediate access to the complete evidentiary foundation of their counterparts' analyses. The court applied the exact same standard to the Defendant, creating a perfectly symmetrical disclosure regime that left Five Real Estate Development with no procedural cover for the evidentiary gaps in its delay claim.
The overarching impact of the consolidation and the subsequent structured timeline was the creation of an inescapable trajectory toward a comprehensive final hearing. To ensure compliance, the court utilized the Progress Monitoring Date mechanism under RDC Part 26, requiring the parties to file a [Progress Monitoring Information Sheet](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=The%20parties%20shall%20file%20and%20serve%20a%20Progress%20Monitoring%20Information%20Sheet) by 10 April 2022. This allowed the TCD to maintain strict oversight over the consolidated timeline, intervening before any deadlines could be breached. The TCD's refusal to allow fragmented claims or protracted discovery disputes is emblematic of a jurisdiction that prioritizes finality. Much like the appellate boundaries enforced in ARB-027-2024: ARB 027/2024 Nalani v Netty, the procedural framework established by Justice Al Nasser and refined by Registrar Hineidi penalized any attempt to obscure the substantive merits behind procedural maneuvers.
The November 2021 order had already locked in the endgame, mandating that `[Agreed trial bundles shall be filed](https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/DIFC_TCD-009-2020_20211118.txt#:~:text=Agreed%20trial%
How Did Justice Glennie Reach the Final Judgment on the Merits?
The substantive resolution of Five Real Estate Development LLC v Reem Emirates Aluminium LLC hinged on a rigorous dissection of construction delay mechanics and a strict application of evidentiary burdens. Justice Lord Angus Glennie’s judgment systematically dismantled the developer’s attempts to shift liability for project overruns onto its subcontractor, exposing a fundamental lack of substantiation in the claimant’s primary case. The court’s decision rested squarely on the failure of the claimant’s delay analysis and the corresponding validity of the defendant’s prolongation costs, establishing a clear boundary against speculative construction claims in the Technology and Construction Division (TCD).
The dispute originated from the construction of the FIVE JVC Hotel in Dubai. Five Real Estate Development LLC (“FIVE”), acting as the developer under a Property Development Contract, had appointed China State Engineering Company as the main contractor. Subsequently, Reem Emirates Aluminium LLC (“Reem”) was engaged by FIVE to design, supply, deliver and install the aluminium and glazing works for the building. When the project suffered significant delays, FIVE sought to hold Reem financially responsible, initiating proceedings that would ultimately backfire.
At trial, the structural framework of FIVE’s offensive was tripartite. As Justice Glennie observed, FIVE, as the Claimant, advanced three claims: Claim 1, a claim for an indemnity; Claim 2, a delay claim; and Claim 3, a defects claim.
The centerpiece of FIVE’s litigation strategy was Claim 2, the delay claim. FIVE alleged that Reem was responsible for critical delays during the final phase of the project, seeking substantial liquidated damages and associated costs. However, construction delay claims in the DIFC Courts require more than mere chronological correlation; they demand precise, expert-led critical path analysis that isolates the specific impact of a subcontractor's alleged defaults from concurrent or dominant delays caused by the employer or other contractors.
FIVE failed to meet this evidentiary threshold. The court scrutinized the expert evidence and the project records, ultimately concluding that the Claimant's delay analysis was flawed and entirely unsupported by the contemporaneous evidence. Justice Glennie found that the true causes of the delays were attributable to FIVE itself and to other entities on the site, specifically noting that the Main Contractor was China State Engineering Company, whose own scheduling failures heavily impacted Reem’s ability to execute the glazing works. By rejecting the claimant's delay analysis, the court reaffirmed the TCD’s intolerance for broad-brush, theoretical delay models that fail to reflect the factual realities of the construction site.
With FIVE’s primary claim collapsing under judicial scrutiny, the momentum of the trial shifted entirely to Reem’s counterclaim. Reem argued that it was not only innocent of causing the critical delays but was actively hindered by FIVE’s mismanagement and the main contractor's lack of progress. Consequently, Reem sought an extension of time and the recovery of prolongation costs—the additional site overheads and administrative expenses incurred by having to remain on the project longer than contractually anticipated.
Justice Glennie found Reem’s evidence compelling and its calculation of prolongation costs robust. The court determined that Reem was entitled to an extension of time and the financial compensation that naturally flows from employer-culpable delay. Delivering the definitive financial blow to the developer, Justice Glennie ruled that Reem was entitled to recover prolongation costs for the period from 8 November 2017 to 2 September 2019 in the sum of AED 6,898,245.88.
This award of nearly AED 6.9 million in prolongation costs underscores the financial peril developers face when they initiate aggressive delay claims without an airtight evidentiary foundation. The TCD will not hesitate to flip the financial liability when the evidence demonstrates that the claimant was the true author of the delay.
Beyond the factual disputes over the construction schedule, the judgment delivered a critical doctrinal ruling regarding the nature of indemnities under UAE law, which governed the substantive obligations of the contract. FIVE’s Claim 1 sought to trigger a contractual indemnity clause to recover various costs and alleged losses. FIVE advanced the position that the indemnity operated as a strict liability mechanism, requiring Reem to make the developer whole regardless of specific contractual breaches.
Justice Glennie firmly rejected this interpretation, aligning the DIFC Court’s approach with the fundamental principles of UAE civil jurisprudence. The court clarified that contractual indemnities cannot exist in a vacuum devoid of fault, accepting the submission that an indemnity as such is unknown under UAE law and requires proof of breach.
The court elaborated on the necessary intersection between the indemnity provision (clause 4.10) and the contract's exclusion of liability clauses (clause 8.7). Justice Glennie held that, at least in the circumstances of the present case, a successful claim to an indemnity under clause 4.10 necessarily involved proof of breach by Reem, in which case the claim would be excluded by clause 8.7.
This doctrinal clarification is highly significant for cross-border practitioners drafting construction contracts in the region. It confirms that simply labeling a provision an "indemnity" does not bypass the UAE law requirement to prove a breach of obligation, nor does it automatically override negotiated caps or exclusions of liability elsewhere in the FIDIC suite.
The judgment also addressed a specific dispute regarding a fire incident on the site and the subsequent settlement negotiations. Reem had claimed for materials damaged in the fire, and the parties had engaged in correspondence to resolve the figure. FIVE attempted to argue that a determination by the Engineer had effectively settled not just the material damage, but also Reem's broader claims for prolongation costs. The court examined the contemporaneous correspondence and the limits of the Engineer's authority to bind the parties beyond their explicit agreements, finding that on the plain wording of the correspondence, it was clear that parties reached agreement on the sum of AED 850,000 in respect of Reem’s claim for materials damaged in or as a result of the Fire Incident.
Justice Glennie refused to allow the Engineer's determination to expand the scope of this narrow settlement to extinguish Reem's multi-million dirham prolongation claim. The court stated that for the reasons set out in the judgment, it was satisfied that if the Engineer determined that the agreed settlement figure (whether AED 750,000 or AED 850,000 did not matter for this purpose) settled not only Reem’s material damage claim but also its claim for prolongation costs, he was wrong so to determine.
This finding reinforces the principle that an Engineer under a FIDIC contract, while wielding significant administrative power, cannot unilaterally rewrite the scope of a bilateral settlement agreement. The court will look to the "plain wording" of the parties' correspondence rather than deferring blindly to the Engineer's subsequent characterization of the deal.
The procedural history of the dispute further highlights the aggressive, and ultimately unsuccessful, tactics employed by the claimant. The litigation involved multiple filings and a prior order by Justice Sir Richard Field, which had initially granted Reem immediate judgment and dismissed FIVE’s claims. The proceedings were later consolidated with case number TCD-003-2021, bringing the entirety of the project's final account disputes before Justice Glennie. The consolidation, referenced as TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re, ensured that the court could adjudicate the competing claims holistically rather than in fragmented, parallel actions.
Having dismantled FIVE's claims and validated Reem's prolongation costs, the court turned to the financial mechanics of the final award. Reem sought interest on the delayed payments, relying on the contractual mechanisms within the FIDIC framework. Justice Glennie affirmed the application of the contractual interest rate, providing specific temporal parameters based on the issuance of Interim Payment Applications (IPAs) and the execution of a Sub-Contract Agreement (SCA), holding that interest was recoverable in accordance with FIDIC clause 14.8 as calculated by Mr Craig, but limited to IPAs issued after the date of the SCA coming into force, i.e. 4 June 2018.
The allocation of costs followed the substantive victory. Given the comprehensive failure of FIVE's claims and the success of Reem's counterclaim, the general rule that costs follow the event was applied. The court ordered that the Claimant shall pay the Defendant’s costs of these proceedings, to be assessed by the Registrar on the standard basis if not agreed.
However, Justice Glennie maintained a measured approach to the penalization of the claimant. Despite the flawed nature of FIVE's delay analysis, the court did not find the conduct sufficiently egregious to warrant the punitive measure of indemnity costs, refusing Reem’s application for costs on an indemnity basis.
The refusal to award indemnity costs, while a minor reprieve for FIVE, does not dilute the severity of the overall judgment. The court ordered the parties to attempt to agree a Final Account based on the binding determinations made in the judgment, effectively forcing the developer to internalize the multi-million dirham consequences of its failed litigation strategy.
The trajectory of this dispute mirrors the strict procedural and evidentiary standards increasingly enforced across the DIFC Courts, as seen in recent arbitration enforcement battles like ARB-027-2024: ARB 027/2024 Nalani v Netty, where the courts have consistently penalized parties who advance unsupported claims or engage in procedural obstruction. In the TCD, a claimant cannot rely on the sheer volume of its pleadings to overcome a deficit of hard, critical-path evidence. Justice Glennie’s ruling stands as a definitive warning: in complex construction litigation, advancing a flawed delay analysis is not merely a defensive failure; it is an invitation for the court to validate the opposing party's prolongation costs in full.
Why Did the Court Reject the Post-Judgment Points of Dispute?
The transition from a substantive trial judgment to the final quantification of damages is frequently the most contentious phase of complex construction litigation. Following the primary judgment delivered on 3 March 2023, Justice Lord Angus Glennie directed Five Real Estate Development LLC and Reem Emirates Aluminium LLC to undertake a reconciliation exercise. The court’s directive was clear: the parties were to attempt to agree a Final Account within 28 days, translating the court’s binding legal and factual determinations into a definitive monetary figure.
For the most part, the parties complied with this directive, making considerable progress in narrowing the financial gulf that had defined their protracted dispute. However, the collaborative accounting exercise ultimately fractured. By early May 2023, the Claimant submitted amended post-judgment filings that sought to litigate two specific "Points of Dispute." This maneuver forced the Technology and Construction Division (TCD) to convene a dedicated post-judgment hearing on 25 May 2023 to resolve the impasse. However, there came a point where the dispute between the parties narrowed down to the Claimant’s two Points of Dispute, and that dispute necessitated this hearing. [https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/tcd-0092020-five-real-estate-development-llc-v-reem-emirates-aluminium-llc-2.txt#:~:text=However%20there%20came%20a%20point%20where%20the%20dispute%20between%20the%20parties%20narrowed%20down%20to%20the%20Claimant%E2%80%99s%20two%20Points%20of%20Dispute%2C%20and%20that%20dispute%20necessitated%20this%20hearing.]
The court’s handling of these two points provides a masterclass in the strict enforcement of procedural finality. The First Point of Dispute hinged entirely on a temporal boundary established during the substantive trial. The Claimant argued that certain financial sums included within the Defendant’s reconciliation spreadsheet had been initially claimed prior to 4 June 2008. In the context of the broader litigation, 4 June 2008 served as a critical cut-off date, a boundary line explicitly defined in paragraph 114 of the 3 March 2023 judgment.
Justice Lord Angus Glennie approached this first objection not as a novel legal question, but as a settled factual matrix that the Claimant was attempting to circumvent. The court scrutinized the timeline of the claims and found the Claimant’s assertions factually deficient. The judge was entirely unpersuaded that any of the contested sums predated the established boundary. As to the Claimant’s First Point of Dispute, the judge was not persuaded that any sums included within the Defendant’s spreadsheet were first claimed by the Defendant before 4 June 2008, that being the critical date for reasons explained in para. 114 of the earlier Judgment issued on 3 March 2023. [https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/tcd-0092020-five-real-estate-development-llc-v-reem-emirates-aluminium-llc-2.txt#:~:text=As%20to%20the%20Claimant%E2%80%99s%20First%20Point%20of%20Dispute%2C%20I%20was%20not%20persuaded%20that%20any%20sums%20included%20within%20the%20Defendant%E2%80%99s%20spreadsheet%20were%20first%20claimed%20by%20the%20Defendant%20before%204%20June%202008%2C%20that%20being%20the%20critical%20date%20for%20reasons%20explained%20in%20para.%20114%20of%20my%20earlier%20Judgment%20issued%20on%203%20March%202023.]
By confirming that the sums were first claimed by the Defendant after that date, the court summarily dismissed the First Point of Dispute. The ruling reinforces a fundamental tenet of TCD practice: cut-off dates established at trial are absolute. They cannot be eroded during the quantum reconciliation phase through creative spreadsheet accounting or revisionist interpretations of when a specific variation or delay cost was formally demanded.
The Claimant’s Second Point of Dispute represented an even more aggressive challenge to the finality of the trial process. In this instance, the Claimant sought to contest the actual amounts that had already been paid to the Defendant. From a procedural standpoint, introducing a dispute over historical payment figures during a post-judgment accounting exercise is highly irregular. The purpose of a final account hearing is to apply the court's findings to the ledger, not to rewrite the ledger itself.
Justice Lord Angus Glennie noted that the figures in question had already been addressed in paragraphs 30 and 110 of the primary judgment. More damningly, the court observed that there had been no dispute at the trial as to the amounts paid to the Defendant. The Claimant had effectively admitted to similar, if not precisely identical, figures in its own pleadings during the substantive phase of the litigation. The figures set out were similar to, though not precisely the same as, sums admitted by the Claimant in its pleadings, and it was too late now Post Judgment to seek to re-open this and raise it as an issue for the first time. [https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/technology-and-construction-division/tcd-0092020-five-real-estate-development-llc-v-reem-emirates-aluminium-llc-2.txt#:~:text=The%20figures%20there%20set%20out%20are%20similar%20to%2C%20though%20not%20precisely%20the%20same%20as%2C%20sums%20admitted%20by%20the%20Claimant%20in%20its%20pleadings.%20It%20is%20too%20late%20now%20Post%20Judgment%20to%20seek%20to%20re-open%20this%20and%20raise%20it%20as%20an%20issue%20for%20the%20first%20time.]
The court’s refusal to entertain the Second Point of Dispute underscores the doctrine of issue estoppel and the broader policy against procedural obstruction. A litigant cannot hold back evidentiary challenges regarding quantum and deploy them only after the substantive judgment has been handed down. If the Claimant believed the Defendant had received additional, unaccounted-for payments, the burden was on the Claimant to plead and prove those payments during the trial. Attempting to introduce them post-judgment is a collateral attack on the court's findings.
This strict intolerance for late-stage procedural maneuvering mirrors the DIFC Courts' broader jurisprudential trajectory regarding finality. For instance, in ARB-027-2024: ARB 027/2024 Nalani v Netty, the court similarly penalized parties who attempted to use post-award mechanisms to re-litigate settled facts. Whether in the context of arbitration enforcement or TCD final accounts, the DIFC judiciary consistently protects the integrity of the primary fact-finding phase. The ongoing friction between these specific parties, also visible in related dockets such as [TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re](https://legal-wires.com/uae-difc/dif
What Does This Case Mean for Construction Practitioners in the DIFC?
The Technology and Construction Division (TCD) of the DIFC Courts operates on a fundamental premise: the trial is the crucible for evidence, not a dress rehearsal for post-judgment accounting. The protracted dispute between Five Real Estate Development LLC and Reem Emirates Aluminium LLC serves as a stark warning to construction practitioners regarding the absolute necessity of front-loading evidentiary submissions. When Justice Lord Angus Glennie issued his Order with Reasons of Justice Lord Angus Glennie on 26 May 2023, he firmly shut the door on the Claimant’s attempts to re-litigate settled facts under the guise of finalizing the project account.
Construction disputes, particularly those governed by heavily amended FIDIC suites, frequently bifurcate liability and quantum, or leave the final reconciliation of accounts to a post-judgment agreement phase. However, the TCD's approach clarifies that this reconciliation phase is strictly mathematical, not evidentiary. The Claimant attempted to introduce a "Second Point of Dispute" regarding the actual amounts paid to the Defendant, figures that had already been established during the trial. Justice Lord Angus Glennie rejected this maneuver entirely, noting that the figures were similar to, though not precisely the same as, sums admitted by the Claimant in its pleadings, and that it was "too late now Post Judgment to seek to re-open this and raise it as an issue for the first time" (Order with Reasons of Justice Lord Angus Glennie, 26 May 2023).
This judicial refusal to entertain late-stage evidentiary shifts is a cornerstone of TCD practice. Practitioners must recognize that any discrepancies in payment records, variations, or delay analyses must be exhaustively pleaded and proven before the trial concludes. The court will not permit a party to use the final accounting process to correct strategic omissions or evidentiary failures from the main hearing. The Claimant’s Post Judgment submissions laying out its Points of Dispute were summarily rejected because they sought to bypass the procedural finality of the trial.
Furthermore, the litigation reinforces the critical importance of precise adherence to determination timelines and cut-off dates inherent in construction contracts. The "First Point of Dispute" hinged entirely on whether certain sums were claimed before or after a specific contractual cut-off date of 4 June 2008. Justice Lord Angus Glennie noted that he was not persuaded that any sums included within the Defendant’s spreadsheet were claimed prior to that critical juncture. In complex infrastructure and real estate developments, the failure to formally assert a claim within the contractual window is fatal. Standard form contracts rely on strict notice provisions and determination timelines to prevent the accumulation of stale claims and to provide employers with real-time visibility into project costs. The TCD enforces these temporal boundaries strictly, treating them as substantive bars to recovery rather than mere procedural technicalities. By ruling that the sums were first claimed by the Defendant after that date, the court reaffirmed that contractual time bars in the DIFC are absolute, immune to equitable circumvention during the final accounting phase.
The financial consequences of ignoring these principles are severe. When parties engage in post-judgment procedural obstruction, the DIFC Courts will not hesitate to impose heavy costs. The transition from the substantive order in May to the final costs assessment in August illustrates the compounding financial risk of drawing out a lost cause. After ordering the Claimant to pay the principal balance of AED 17,028,125.19, the court's patience with the Claimant's continued resistance evaporated.
On 30 August 2023, Registrar Ayesha Bin Kalban issued a FINAL COSTS CERTIFICATE OF THE REGISTRAR that quantified the price of the Claimant's litigation strategy. The procedural history leading to this certificate reveals a relentless campaign of attrition. Following the May judgment, the Defendant filed Notices of Commencement of Assessment of Bill of Costs dated 22 and 23 June 2023. Rather than conceding the quantum of costs, the Claimant initiated further skirmishes, filing points of dispute dated 14 July 2023. This necessitated a formal reply to the Points of Dispute dated 31 July 2023 from the Defendant. The Registrar's ultimate order was uncompromising, cutting through the procedural thicket to mandate the payment of nearly AED 3 million in costs and assessment fees, stating that "The Claimant shall pay the Defendant the sums ordered in paragraph 1 of this Costs Certificate within 21 days from the date of the Costs Certificate" (FINAL COSTS CERTIFICATE OF THE REGISTRAR, 30 August 2023).
The assessment of AED 2,895,346.08 in costs, alongside AED 217,150.95 purely for the fee paid by the Defendant for commencement of the assessment proceedings, demonstrates the TCD's willingness to make successful parties whole when faced with relentless procedural friction. This aligns with a broader jurisprudential trend in the DIFC where courts actively penalize parties who refuse to accept the finality of judicial or arbitral determinations. The approach mirrors the court's intolerance for obstruction seen in arbitration enforcement contexts, such as ARB-027-2024: ARB 027/2024 Nalani v Netty, where the limits of post-award appeals were sharply defined to prevent the weaponization of procedure.
For King's Counsel and cross-border litigation partners advising regional developers, the ruling dictates a shift in trial strategy. The traditional approach of leaving the granular details of payment reconciliation to a post-trial referee or a subsequent agreement phase carries unacceptable risks if the foundational evidence is not rigorously tested in the main hearing. The TCD requires that the evidentiary matrix be complete before the judge retires to write the substantive judgment. Attempting to introduce new payment evidence or challenging previously admitted figures after the fact will not only fail but will trigger punitive cost consequences. The court's directive that the Claimant must pay the AED 17 million within 14 days from the date of this Order leaves no room for liquidity maneuvering.
The Five Real Estate saga, which also spawned related proceedings like TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re, establishes a clear operational mandate for legal teams. First, the evidentiary record must be hermetically sealed by the close of trial. If a party intends to dispute the quantum of payments already made, the underlying bank statements, payment certificates, and expert forensic accounting must be tested during cross-examination, not attached to a post-judgment submission. Second, the TCD expects parties to negotiate final accounts in good faith following a liability judgment. Justice Lord Angus Glennie explicitly noted that the parties had made considerable progress and he saw no reason to penalise either party in costs during that exercise. However, the moment the dispute narrowed to points that were fundamentally attempts to re-open the trial, the cost protection vanished.
The imposition of a 9% post-judgment interest rate, accruing immediately after the 14-day payment window, further disincentivizes delay. The court ordered that interest would accrue pursuant to Practice Direction No. 4 of 2017 if the AED 17 million was not remitted promptly. For a developer, a 9% interest rate on a multi-million dirham judgment creates a rapidly expanding liability that outpaces most commercial returns, rendering appellate or procedural stalling tactics economically irrational.
Ultimately, the TCD’s handling of Five Real Estate Development LLC v Reem Emirates Aluminium LLC provides a masterclass in judicial boundary-setting. Construction litigation is inherently complex, often involving thousands of line items, variations, and delay events. The court accommodates this complexity by allowing parties time to agree on the final math based on the court's binding declarations. But that accommodation is strictly bounded. Practitioners must advise their clients that the DIFC Courts will ruthlessly excise any attempt to smuggle new evidence or resurrect defeated arguments into the final accounting phase. The AED 2.89 million costs certificate stands as a permanent monument to the high price of failing to heed that boundary.
What Issues Remain Unresolved in the Wake of This Litigation?
The final order issued by Justice Lord Angus Glennie on 26 May 2023 brought a definitive end to the immediate financial dispute between Five Real Estate Development LLC and Reem Emirates Aluminium LLC, crystallising the final account at AED 17,028,125.19. Yet, beneath the surface of this multi-million dirham payout lies a bedrock of unresolved doctrinal friction. The litigation exposes a persistent tension within DIFC construction jurisprudence: the delicate boundary between the contractual authority of a FIDIC Engineer’s determination and the overriding jurisdiction of the Technology and Construction Division (TCD) to conduct a de novo assessment of a final account.
When the TCD initially handed down its judgment on 3 March 2023, it directed the parties to attempt to agree a Final Account based on the court’s findings regarding individual disputed items. This directive forced the parties back to the negotiating table, but it also laid bare the limitations of relying on prior project-level determinations. Throughout the project’s lifespan, FIVE had relied heavily on the Engineer’s assessments to suppress Reem’s claims for prolongation costs, arguing that a prior settlement regarding material damage from a fire incident had effectively extinguished Reem’s broader entitlements.
Justice Lord Angus Glennie dismantled this conflation, asserting the court’s prerogative to look behind the Engineer’s certification when the underlying logic fails to align with the distinct heads of claim. The court refused to allow a settlement for physical damage to implicitly swallow a valid claim for time-related costs.
For the reasons set out above, I am satisfied that if the Engineer determined that the agreed settlement figure (whether AED 750,000 or AED 850,000 does not matter for this purpose) settled not only Reem’s material damage claim but also its claim for prolongation costs, he was wrong so to determine.
This ruling strikes at the heart of how developers and contractors approach interim settlements under FIDIC contracts in the region. By explicitly stating that the Engineer was "wrong so to determine," the TCD signals that it will not defer to a project manager’s or Engineer’s agreed settlement figure if that figure is retroactively weaponised to bar legitimate, distinct claims. For practitioners, the judgment necessitates a far more granular approach to drafting settlement agreements during the lifecycle of a construction project. A broad, vaguely worded determination by an Engineer will not survive judicial scrutiny if it attempts to extinguish rights that were not explicitly negotiated away.
Beyond the mechanics of FIDIC administration, the litigation leaves open significant questions regarding the enforcement of indemnity clauses under UAE law when applied within the DIFC Courts. FIVE’s primary offensive maneuver—Claim 1—was framed as a claim for an indemnity. In common law jurisdictions, an indemnity operates as a primary obligation, a debt claim triggered by a specific event that does not strictly require the claimant to prove a breach of contract or to mitigate losses in the same manner as a standard claim for damages. However, the substantive law governing the contract in this dispute required the court to view the indemnity through the lens of UAE civil jurisprudence.
Justice Lord Angus Glennie’s treatment of this claim exposes a critical vulnerability for developers relying on standard-form common law indemnity clauses in contracts governed by UAE law.
Second, I accept the submission that an indemnity as such is unknown under UAE law; there must be proof of breach.
By requiring proof of breach to trigger the indemnity, the court effectively collapses the distinction between a claim for an indemnity and a standard claim for contractual damages. If an indemnity clause only activates upon a proven breach of contract, it becomes subject to the same evidentiary burdens—and potentially the same contractual exclusions—as any other damages claim. In this specific contract, establishing a breach by Reem would immediately trigger the exclusion of liability under clause 8.7, rendering the indemnity commercially worthless. This doctrinal gap remains a minefield for cross-border practitioners drafting construction contracts in the region. It demands a recalibration of risk allocation strategies, as the traditional common law "hold harmless" protection cannot be relied upon to bypass the UAE law requirement for fault.
The procedural friction generated by the consolidation of claims further complicates the legacy of this dispute. The proceedings were formally consolidated with TCD-003-2021 TCD 003/2021 Five Real Estate Development LLC v Re by H.E. Justice Nassir Al Nasser in November 2021. While consolidation is designed to streamline judicial resources, it often creates a tangled web when assessing costs and final accounts, particularly when one party’s claims are struck out entirely while the other’s counterclaims succeed.
Following the March 2023 judgment, the parties managed to agree on the vast majority of the final account, but FIVE launched a final, desperate procedural maneuver in May 2023. FIVE raised two "Points of Dispute," attempting to argue that certain sums were claimed before a critical cutoff date and that Reem had already been paid additional amounts not reflected in the court’s initial findings. The court’s rejection of these points underscores the strict limits of post-judgment challenges in the TCD.
Justice Lord Angus Glennie was entirely unpersuaded by FIVE’s attempt to re-litigate the timeline, noting the impossibility of the assertion that sums were first claimed by the Defendant before 4 June 2008—a date long before the project even commenced, highlighting the factual disarray of the claimant’s final submissions. More importantly, the court drew a hard line against reopening evidentiary matters that should have been tested at trial.
The figures there set out are similar to, though not precisely the same as, sums admitted by the Claimant in its pleadings. It is too late now Post Judgment to seek to re-open this and raise it as an issue for the first time.
This strict adherence to the finality of the trial record aligns with the broader DIFC Courts' intolerance for procedural obstructionism, a theme similarly explored in ARB-027-2024: ARB 027/2024 Nalani v Netty. Once a judgment is handed down, the window for introducing new interpretations of payment ledgers or challenging admitted pleadings is firmly closed. The TCD will not allow the "attempt to agree a Final Account" phase to devolve into a shadow trial.
However, the court’s approach to costs reveals a nuanced balancing act. Despite FIVE’s repeated failures—from the striking out of its initial AED 7.7 million claim to the dismissal of its flawed delay analysis and the rejection of its post-judgment Points of Dispute—the court refrained from imposing punitive cost measures. Reem’s application for costs on an indemnity basis was explicitly refused in the March 2023 judgment. Instead, the court maintained a standard basis for assessment, even when dealing with the May 2023 hearing. The final order specifically directed FIVE to pay the costs of and in connection with the Hearing from 11 May 2023, pinpointing the exact moment the post-judgment dispute crystallised.
This precise carving out of costs indicates that while the TCD will strictly enforce the finality of its judgments, it remains hesitant to deploy indemnity costs as a weapon against parties who exhaust their procedural options, provided those options are exercised within the bounds of the rules. The reluctance to award indemnity costs, even in the face of a comprehensively defeated claim, leaves an open question for future litigants regarding the threshold required to trigger punitive cost consequences in complex construction disputes.
Ultimately, while the AED 17 million payout resolves the immediate commercial conflict between FIVE and Reem, the jurisprudential ripples of TCD 009/2020 will continue to affect how practitioners draft settlement agreements, structure indemnity clauses under UAE law, and navigate the perilous post-judgment phase of final account assessments in the DIFC Courts.