Jeffrey Stone v (1) Abhi Fintech Limited (2) Abhi Limited [2025] DIFC CFI 089 (16 April 2025)

Claim No: CFI 089/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

JEFFREY STONE

Claimant

and

(1) ABHI FINTECH LIMITED

(2) ABHI LIMITED

Defendants

ORDER WITH REASONS OF H.E. JUSTICE ANDREW MORAN

UPON the Case Management Order of H.E. Justice Nassir Al Nasser dated 30 January 2025 as amended on 4 April 2025 (the “CMC Order”)

AND UPON the Claimant’s Application No. CFI-089-2023/5 dated 11 February 2025 for permission to call an expert (the “Application”)

AND UPON the Defendants’ evidence in answer dated 17 February 2025 and the Claimant’s evidence in reply dated 24 February 2025

AND UPON hearing Counsel for the Claimant and Counsel for the Defendants at a hearing held before H.E. Justice Andrew Moran on 10 April 2025 (the “Hearing”)

AND UPON reviewing the Rules of the DIFC Courts (“RDC”)

IT IS HEREBY ORDERED THAT:

1. The Parties are each granted permission to call one forensic accountancy expert to provide their opinion on the value of the Claimant’s non-dilutable shareholding in the Second Defendant.

2. Paragraph 16 of the CMC Order shall apply.

3. The Parties’ costs in respect of obtaining and calling expert evidence, shall be costs in the case.

4. The Defendants shall pay the Claimant’s costs of the Application assessed in the full amount claimed of USD 68,046.67

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 16 April 2025
At: 3pm

SCHEDULE OF REASONS

(References are to the hearing bundle pages [HB/n])

Introduction and background

1. These proceedings concern a claim by the Claimant to receive certain unpaid emoluments or benefits of his employment with the Defendants, which employment he alleges was the subject of an invalid termination. Materially, he claims he has become entitled under his contract of employment to have vested in him, by transfer from the Defendants, certain share entitlements which has not yet been done. This is notwithstanding the fact that it is admitted by the Defendants that he is entitled to receive 3.5% of the ordinary shares or common stock of the Second Defendant (which admission will now be made clear and recorded in an amended Defence the Defendants have properly agreed to file at court). He therefore claims (inter alia) at paragraph 27.2 of his Amended Particulars of claim [HB/22],“A declaration as to the Claimant’s Share Entitlement and an order requiring the Defendants to transfer to the Claimant his Share Entitlementsalternatively damages, in respect of that entitlement”(emphasis added). At a Case Management Conference on 27 January 2025, the Judge presiding H.E Justice Nassir Al Nasser, (the “Judge”) after hearing argument on the matter, approved the Claimant’s definition of an issue for trial in the List of Issues at issue 20 (b) in the following terms:Alternatively, [to the issue of the Claimant’s entitlement to specific performance of the obligation to transfer the shares to him]is the Claimant entitled to damages with respect to the First and/or Second Defendant’s breaches in connection with his Share Entitlements? If so, what is the quantum of the Claimant’s losses?

2. There is therefore before the Court, the Application by the Claimant (numbered CFI-089- 2023/5), for permission for him“to call an expert to assist the Court to determine: a. the valuation of the Second Defendant and its shares; and b. the net present value in the shares so as to determine a non-dilutable interest in the equity shareholding of the Second Defendant”as advanced in its draft order [HB/8] (together with ancillary procedural provisions that are no longer appropriate as explained below) (the “Application”). The Claimant simply contends that without expert evidence, the Court would not be equipped to assess damages on his alternative claim, which assessment plainly depends on the value of the shares he claims to be entitled to but has not received. Accordingly, it is submitted that the Court needs to go no further than the pleaded alternative claim and the defined issue 20 b., to be satisfied, that expert evidence is reasonably required to resolve the proceedings, and that permission to call an expert to value the shares should be granted.

3. The Defendants’ position before and at the CMC, and their primary position now before the Court in response, has been to oppose the Application. They contend that having regard to the relief sought of specific performance (though it contends mandatory injunctive relief is probably more appropriate if the Claimant succeeds on liability), the expert evidence the Claimant seeks to call, is not reasonably required to resolve the proceedings under Rule 31.12 of the Rules of the Dubai International Financial Centre Courts 2014 (the “RDC”) and that the Application should be dismissed. The Court has been treated to a most elaborate argument, and a quite extraordinary spectacle of the Defendant’s counsel advocating a position, that if the Claimant succeeds on liability and entitlement to any percentage of the shares in issue, the Court should and would do nothing other than make an order against his clients, for specific performance or injunction to transfer the shares. In particular, and in summary, he submitted that as there is no prospect of an award of damages, expert evidence to value the shares is not going to be required to resolve the proceedings.

4. The Defendants’ secondary position, should the Court be against them and be inclined to grant permission to the Claimant to call an expert, is now that it too should be granted permission to call an expert in response. This secondary position is embodied in its draft order at [HB/142], in which it proposed an order that:“The Parties are each granted permission to call one forensic accountancy expert to provide their opinion on the value of the Claimant’s non-dilutable shareholding in the Second Defendant(also with ancillary procedural provisions that are no longer appropriate as explained below).

The Procedural course of the Application

5. It is most unfortunate that in what ought to have been a straightforward matter of agreement between the parties (for reasons hereafter explained), there has developed a protracted and costly procedural dispute about whether permission to call experts should be granted. This has caused the parties to incur a combined total of legal costs of the Application (roughly converted to USD) of nearly USD 170,000.

6. At paragraph 11 of the Case Management Order (the “CMO”), the Judge directed as follows:

“Expert Evidence (RDC Part 31)

11. If either party wishes to rely on expert evidence, it shall make an application to the Court for permission to do so. The Claimant shall file and serve an expedited application under RDC Part 23 for permission to call an expert witness by no later than 4pm (GST) on 10 February 2025.”

7. The Claimant complains that the Judge’s approach in putting the issue of permission to call expert evidence off to an application to be determined by the trial Judge, under the new practice of “docketed case management” introduced in the DIFC Courts, is not warranted by the RDC; and that such applications are normally made and determined at the Case Management Conference (see RDC 31.14). Further, that the Defendants opportunistically embraced this departure from normal practice to“further delay progression of the case”. This suggestion by the Claimant is unfounded and rejected. The Judge was following the recent change in the Court’s practice, of which practitioners in the Courts are well aware (and, as it seems from paragraph 7 of the Claimant’s skeleton, the Claimant’s representatives are also now aware) whereby important case management applications, in substantial cases allocated to a particular judge for trial, and case management towards the trial, should be dealt with by the Judge to whom the case has been allocated. The Defendants’ contentment with the Judge’s approach and decision, was reasonable. The need for the Application was not a consequence of any opportunism by the Defendants at the CMC but their wrong decision to oppose the Application, as hereafter determined. The scope of argument to which the Court has been treated from both sides, on the issues arising on the Application, is testament to the desirability of both the new practice and the Judge’s decision in this case to defer to it.

8. Notwithstanding the suggestion of opportunism to delay matters by the Claimant, his representatives did not delay progression of obtaining an order by consent that he should have permission to adduce expert evidence, and adopt the timetable provided in the CMO, should permission be granted. On 3 February 2025, Morgan Lewis & Bockius wrote seeing agreement to permission for expert evidence as follows:

“However, given the relief sought by the Claimant and the self-evident need for expert evidence, we write to invite the Defendants to agree to the parties adducing expert evidence and adopt the timetable outlined in the Order with regard to expert evidence. This ensures that the parties’ costs, as well as the time and costs of the Court, are not unnecessarily incurred, and ensures that the parties assist the Court in furtherance of the overriding objective. Where the Defendants are amenable to this, we will seek agreement from the Court that this may be addressed by way of a consent order, or alternatively, can be addressed to the Judge through the papers.”

9. On behalf of the Claimant, Simmons and Simmons replied on 5 February 2025, to remind of the Defendant’s position that:

“The Defendants’ position is as outlined in our second email of 23 January 2025, namely that expert evidence is not required in circumstances where the Defendants do not dispute that, to the extent the Claimant is entitled to vested shares, those shares are required to be transferred to him, and the Court would therefore make an order for specific performance regarding the transfer of shares to the Claimant.”

10. Being concerned about costs of expert evidence they proposed as follows:

“In the event that the Claimant prevails on his claim in relation to the shares, he will bear his own costs in respect of expert evidence, and the Defendants’ costs of expert evidence will be deductible from whatever sum they are required to pay the Claimant in respect of costs; and

The above shall apply unless the Court declines the primary form of relief sought by the Claimant (i.e. the transfer of shares to which he is entitled) and instead awards damages.”

11. On 6 February 2025, Morgan Lewis responded to state:

“Your clients’ proposal is not accepted by the Claimant. In the ordinary course of proceedings, expert fees would be considered costs in the case. There is no reason why this should be any different here, in circumstances where the Claimant pleads specific performance and damages in the alternative, particularly where the Defendants accept that some shares have vested but have failed to transfer them (or provide any reason for failing to do so).

Further, the Defendants have admitted that the Claimant holds a nondilutable interest in the 5.5% equity of the Second Defendant, such that the number of shares held will be adjusted from time to time as necessary to ensure that the Claimant maintains the vested portion of the equity interest in the Second Defendant at all times. Accordingly, expert evidence will be required to determine the non-dilutable value of the equity interest.”

And counter-proposed the following as to the costs of expert evidence:

“If the Claimant is awarded specific performance only and the Court does not rely upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non-dilutable interest in the equity, the Claimant will be responsible for his own expert fees, but the costs of any expert instructed by the Defendants is to be treated as costs in the case in the ordinary way; or

If the Claimant is awarded damages (whether as well as, or instead of, specific

performance), and/or the Court relies upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non-dilutable interest in the equity, costs of the experts for both parties will be treated as costs in the case.”

12. On 7 February 2025, Simmons & Simmons responded with amendments to the counterproposal:

“On the basis of the above, please see the Defendants’ proposed adjustments to bullets 1 and 2 of the Claimant’s counterproposal, as follows:

If the Claimant is awarded specific performance only~~and the Court does not rely upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non- dilutable interest in the equity,~~the Claimant will be responsible for his own expert fees, but the costs of any expert instructed by the Defendants are is to be treated as costs in the case in the ordinary way reserved; or

If the Claimant is awarded damages (whether as well as, or instead of, specific performance), and/or the Court relies upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non-dilutable interest in the equity, costs of the experts for both parties will be treated as costs in the case.”

13. On the dame date, Morgan Lewis responded with a further counter proposal in the following terms (indicating that if it was not agreed, it would proceed with its application which was to be made by no later than 4-00pm on 10 February 2025, pursuant to paragraph 11 of the CMO):

“Nevertheless, the Claimant remains willing to reach agreement on the following basis:

6.1 If the Claimant is awarded specific performance only and the Court does not rely upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non-dilutable interest in the equity, the Claimant will be responsible for his own expert fees. The Defendant’s costs in considering or addressing the Claimant’s expert’s report shall be treated as costs reserved, save that where the Defendant wishes to call his own expert in response to the Claimant’s expert, any costs shall be costs in the case; or

6.2 If the Claimant is awarded damages (whether as well as, or instead of, specific performance) and/or the Court relies upon expert evidence for the assessment of the valuation of the shares and/or a quantification of the non-dilutable interest in the equity, costs incurred by the parties in respect of expert evidence shall be treated as costs in the case.

If the parties are able to reach agreement on the terms set out above, we understand that the Judge will consider the Claimant’s application on the papers. In the alternative, in the absence of an agreement as outlined above, the Claimant will proceed with its application, to be determined at a hearing.”

14. On 10 February, Simmons & Simmons agreed to this latest proposal from the Claimant as to the costs of expert evidence. Up to this point in time, the negotiations as to the costs provisions concerning the expert evidence that the Claimant was seeking permission to adduce, had been on the basis that the Defendants did not consider expert evidence to be necessary for all of the reasons it had advanced in correspondence and has now advanced with considerable elaboration before the Court. Their representatives stated before agreeing to the costs provision:

“We do not propose to respond to all of the points in your letter given the parties’ positions are clearly stated in previous correspondence, save to note that the Defendants’ position remains that expert evidence is not required and the Claimant’s counterproposal contains unnecessary wording.”

So, it appeared to the Claimant and his representatives, that the order required by consent, was for permission for him alone to adduce expert evidence as to the value of the shares to which he claimed he was entitled.

15. In consequence, by email sent at 09:54 on 10 February a consent order and a draft order for agreement were sent to Simmons & Simmons. The Consent order [HB/137] recorded the Parties agreement to the Claimant’s application for permission for him to lead expert evidence, and that a two hour hearing provided for in the CMO to deal with it, shall not be necessary, and that it could be dealt with, without a hearing. It also recorded the agreement reached in respect of the costs of the Claimant’s expert (supra §13). The Draft Order, also sent for issue by the Court, on the basis of the Consent Order [HB/139], provided for permission for the Claimant alone to call an expert, that paragraph 16 of the CMO should apply subject to timelines for service of the report (including, inappropriately, for a Supplemental Expert Report) and provided for further directions to be given if the Defendants also applied for permission to call an expert. It is emphasised again, that the Defendants’ position throughout had been that expert evidence was not required; and it had opposed permission for the Claimant to call an expert, until agreement was reached on the costs of him doing so, if it turned out the evidence was not needed or relied upon by the Judge at trial. Meanwhile, with the Defendants’ solicitors having indicated they required further time to seek client instructions on the updated wording of the consent orders proposed, time was extended by a consent order to file the Application, to 16:00 on 11 February 2025.

16. The next afternoon at 13:59 GST on 11 February (just a minute over two hours from the extended deadline for filing the Application – the email is time stamped 09:59 which would be GMT), by way of a volte face from its position on the need for expert evidence, the Defendants lawyers reverted with a single revised draft consent order. This draft order now proposed the granting of permission to both parties to call expert evidence (with responsive expert evidence from the Defendants) and retention of paragraph 16 of the CMO. They also proposed amendment of the agreed costs order with what they contended was“more typical language adopted by the courts”.

17. Later the same day, the Claimant’s lawyers responded [HB/144] setting out the record of what had occurred in connection with the Application (as summarised in its important details above), and what the Defendants’ position had been throughout until its volte face on the need for expert evidence of its own. It pointed out the need (as advised by the Court) for the Defendants to make their own application for permission to adduce expert evidence and concluded thus:

“In the circumstances and in light of the impending deadline on the Claimant to submit an application, the Claimant has no choice but to proceed on the basis of its own application and draft order.

Notwithstanding the above, if the Defendants would like to adduce evidence, the Court has informed us that it would allow the Defendants’ application to be added to the Claimant’s application, where both parties share the costs of that application. We would be willing to agree to this. However, the costs of both parties’ experts must be costs in the case.”

18. These events leading to the Application, the fully contested hearing that has taken place, and the Defendants now reverting to their primary case that expert evidence is not reasonably required from either party to resolve the proceedings, are well described in the second witness statement of Rebecca Ann Ford, the Claimant’s solicitor, at paragraphs 10-29. The Court accepts her refutation of the Defendants’ complaint that the Claimant has not offered any good explanation for filing the Application when the parties were in the process of discussing terms on which an expert could be called at paragraph 27 of her statement. In the Court’s judgment, the Claimant has provided a good explanation for, and acted reasonably in filing the Application at the time he did, in accordance with the order requiring him to do so. He had acted reasonably, where he was entitled to an order for permission to call expert evidence (as this Court has decided), in trying to avoid a contested application, by making concessions on costs. He also continued to act reasonably, after much time and costs had been wasted in discussing and agreeing a particular costs protection for the Defendants, premised on their position that expert evidence was not required to resolve the proceedings; only for the Defendants to change their position at the eleventh hour, require provision for expert evidence of their own, and still seek to retain the favourable costs order they had procured for themselves by agreement based on a premise that had fundamentally changed. It was reasonable for the Claimant to offer agreement to the Defendants having the permission to call an expert they belatedly sought, by an application they were required to make, but to revert to the more conventional costs order that expert costs should be costs in the case. The Court accepts and agrees with Ms Ford’s characterisation of the situation which has led to this fully contested and costly Application before the Court in paragraph 30 of her second witness statement [HB/154], and it rejects the Defendants’ submissions to the contrary. The Defendants have thereafter chosen to contest the Application on the merits in full; with an alternative position if they fail on their primary case and resistance, in which they essentially seek to have their cake and eat it, by retaining concessions on costs made on the basis of a premise or position which has been withdrawn, and at the same time, obtaining their own permission to call an expert,.

19. The Court has considered the submissions of Mr Bheeroo recorded at pages 64-80 of the Transcript and although it accepts that the main parts of the Defendants’ draft order are more suitable than that proposed by the Claimant, the differences are not what has led to this fully contested hearing before the Court. It is the Defendants’ failure to accept and proceed with the final reasonable proposal quoted in paragraph 17 above and their reversion to their primary case that expert evidence is not necessary, that has led to this contested hearing and all of the costs it has entailed. The Court is satisfied that: (i) if the Defendants had frankly admitted they had changed their mind, agreed that expert evidence was reasonably required and now wanted their own expert evidence; and (ii) if they had agreed that the special costs order to which they had obtained agreement on the basis that they did not consider expert evidence to be necessary, and did not intend (at that stage at least) to call any, was no longer appropriate; and (iii) if they had agreed to the Claimant’s final proposal after it reasonably felt constrained to comply with the CMO and file its application; the form of order would probably have been agreed and this contested Application would have been unnecessary. It is the Court’s judgment that it was the Defendants that moved the goalposts in dealing with the Application and seeking to avert it, not the Claimant. His Counsel’s description of the Defendants’ submissions seeking to blame the Clamant for this contested application as a“pretty extraordinary piece of revisionism”, was a reasonable characterisation of them.

Is expert evidence reasonably required to resolve the proceedings?

20. By way of important preliminary observation, it is undesirable and the Court does not consider it appropriate, to render detailed findings and reasons in the course of dealing with an interlocutory application for permission to adduce expert evidence, in relation to all the potentially complex issues arising in relation to the granting of discretionary remedies of specific performance and/or injunction under Articles 38 and 39 of the Law of Damages and Remedies, DIFC Law No 7 of 2005, that have been raised before it. Such has been the scope and extent of the Defendants’ submissions before the Court on this Application, about there being no other remedy that is likely to be granted other than Specific Performance or Injunction (if the Claimant prevails on liability and entitlement), that it is clear to the Court it is both premature and unsatisfactory to deal with them in advance of trial.

21. In the Court’s judgment, the proper approach to dealing with the Application at this interlocutory stage, having regard to the pleadings and, if there is one (as in this case there is), the list of issues for trial, is simply to evaluate if the applicant’s case and submissions demonstrate a reasonable requirement for expert evidence in accordance with RDC 31.12. This does not require demonstration of certainty of the requirement for expert evidence but satisfaction of there being a prospective or potential scenario of evidence and findings at trial, which is real and not fanciful or remote, in which the Court would be unable to render a judgment on pleaded claims and issues, without expert assistance. It is a question, test or approach which is brought into stark focus, where there are (as in this case), alternative claims for relief in which the right to, or appropriateness of one form of relief may be determined without the need for expert evidence; and the other may require expert evidence for its fair, just and efficient determination. The decision whether to allow expert evidence or not, also requires particular caution, in circumstances where different forms of relief might or might not be available for technical legal reasons or restrictions, which cannot fairly and properly be determined other than upon hearing evidence and submissions at trial. Such has been shown to be a real possibility in the submissions of Mr Doherty on behalf of the Claimant in this case, as mentioned below.

22. In this case, the Claimant has satisfied the Court, that it is appropriate to grant permission to both parties to adduce expert evidence and the Defendants’ primary case that such evidence is not reasonably required, is rejected. The Court considers it appropriate to treat the Defendants’ proposed order on its alternative case, as their application for permission to adduce expert evidence in response, and to grant them permission accordingly. The Court considers that the form and wording of the order proposed by the Defendants [HB/142] at paragraphs 1 and 3 (now paragraph 2 of the order made above) is more appropriate and suitable than the form and wording of the Claimant’s draft order, as it better defines the expert evidence that would be required to resolve that part of the proceedings dealing with the Claimant’s alternative claim for damages.

23. The Claimant’s reasons or grounds which have mainly, and taken cumulatively together, satisfied the Court that expert evidence of the value of the shares is reasonably required, may be shortly summarised as follows:

a) The list of issues approved by the Judge at the CMC after hearing argument provides a strong indication that expert evidence is reasonably required, in case the Claimant’s alternative case and issue stemming from it, fall for determination.

b) The Court does not possess the skill, expertise or learning to make a judgment about the value of shares without expert assistance. As to that required assistance, the Court is satisfied that it will be cogent, helpful and is entirely proportionate to the probable value of the shares (to the extent that the substantial value of them is shown by the evidence and submissions presently before the Court).

c) The need for expert evidence is particularly acute in this case of a private company, whose shares are not publicly traded and where the entitlement is non dilutable, and their value or number may need to be quantified in a shareholding structure, that may have been or yet be modified since the entitlement to them was conferred. The Court accepts the force of the Claimant’s submissions at paragraphs 53 and 54 of his skeleton argument. The Court has weighed the Defendants’ arguments to the contrary – in particular in response to the Court’s questions in oral argument from page 56-64 of the Transcript, but is not persuaded, on the material before it, that the Court would have no need of expert evidence to deal with the“topping up”process. To the contrary, as Mr Bheeroo submitted at page 64,“ensuring the precision in the order so that it is maintained and therefore it [topping up]happens automatically by reference to the order that is made by the court”, may very well require or at least be assisted by expert evidence.

d) Notwithstanding, the Defendants’ submissions and the several authorities relied upon by them (all of which the Court was taken to and has considered), concerning the grant of specific performance, suggesting that the court does not need expert evidence to determine the threshold questions to the exercise of the discretion to grant or refuse specific performance under Article 39 of the Remedies Law, the Court is not satisfied on the material before it at this interlocutory stage, either that it is appropriate to make that determination in dealing with this application; or that the submission is correct. Accordingly, it proceeds on the basis, that expert assistance is reasonably required to be available at trial, in case it is needed to determine whether damages are unquantifiable or not a sufficient remedy; and to inform the exercise of a discretion, which is not to be fettered by any lack of such evidence.

e) The Clamant has demonstrated the real possibility of a composite order for specific performance of certain aspects of his entitlement to shares which had vested in him and also, necessarily, for damages in respect of other portions, which had not vested, in consequence of an alleged wrongful early termination. This stems from live disputes between the Parties concerning the circumstances in which the Claimant’s contracts were terminated and the dates on which they were terminated. In those circumstances, expert evidence of the value of shares that he did not acquire a proprietary right to, by any wrongful action by the Defendants in breach of contract, would be required.

f) Some weight must be attached to the Defendants’ continuing failure to vest shares in the Claimant which they admit he is entitled to, notwithstanding the Defendants’ explanation and reasons given for not doing so to date.

g) The Defendants’ stance and lack of clarity in its pleading (pending promised amendment), gives rise to some legitimate concern that there may be reasons; or that reasons might arise, which would prevent the transfer of shares to the Claimant. The mere negative assertion of a solicitor that the Second Defendant is not unable to transfer the shares, obviously made only on instructions, and without producing information and evidence at this stage of proceedings to substantiate its ability to do so (now or at some future date), is not a compelling positive demonstration of its ability to do so. Nothing has been produced in evidence in relation to the shareholding structure, lack of incumbrances or its continuing ability to transfer shares. The solicitor’s assertion does not therefore, displace the reasonable requirement for expert evidence to determine an issue still before the Court.

h) The Defendants’ admission and position (to be clarified and included in their defence) as found at paragraph 22 of their skeleton argument and in the evidence of Payam Beheshti there referred to, does not, in the judgment of the Court, obviate or remove the requirement for expert evidence, demonstrated by the combined weight of all of the foregoing reasons.

24. The Court has accordingly made its order granting both Parties permission to adduce expert evidence.

Costs of expert evidence and of the Application

25. The Court does not consider that the Defendants are entitled to the special costs order they had negotiated on the basis of the stance they had adopted in negotiations, from which they resiled at the eleventh hour in those negotiations. Nor does it consider that such a form of order is a fair appropriate order for the Court to make, in the circumstances of its decision that expert evidence is reasonably required, and that Parties on both sides should have permission to adduce it.

26. The normal order where Parties on both sides are granted permission to adduce expert evidence, which the Court considers at the time of an application is reasonably required, is for the costs of expert evidence to be in the case. No other form of order in relation to the costs of expert evidence has been suggested in the submissions before the Court (apart from the negotiated order as to expert costs now rejected) and the Court considers that normal or common form of order to be appropriate in the circumstances.

27. As for the costs of the Application, the Defendants have obviously failed in their primary case of resistance to an order granting permission to call expert evidence and the Claimant has succeeded; so that costs should normally follow the event. The Court has acquitted the Claimant of the allegations that he or his representatives behaved unreasonably in filing the Application when they did. It has also found that he adopted a reasonable position after filing it and made a reasonable proposal which, had it been accepted and taken forward, would have avoided expensive contestation of the Application. Instead, the Defendants reverted to their complete opposition to the grant of permission to adduce expert evidence, which the Court has found to be wrong and rejected. The fact that parts of its suggested form of order on its alternative case have been accepted by the Court in the making of its order, in preference to the Claimant’s draft order, is such a minimal degree of success, that it does not sound in diminution of the Claimant’s full entitlement to his costs in principle. The Court is satisfied that if the Defendants had adopted a reasonable position after the Claimant had issued the Application in response to his final proposal, agreement on the terms of a suitable order, that the Court would have approved, should and would probably have been reached. If not, the competing draft orders could have been placed before the Court for it to decide at minimal cost.

28. The Court is satisfied that an immediate assessment of the costs claimed by the Claimant on the Application is the appropriate way to proceed in the case of this Application, to ensure efficiency, fairness, and proportionality in assessment of costs, avoiding unnecessary delay. Immediate assessment will also avoid additional costs being incurred by the parties and the consumption of the limited resources of the Court. Immediate assessment provides the fair and just outcome that the costs must be paid following assessment, and that the Claimant is not kept out of pocket.

29. The Court has before it a Statement of Costs submitted by the Claimant dated 9 April 2025. It finds that the costs claimed therein, are reasonable and proportionate in amount and reasonably and proportionately incurred, having regard to the degree of contestation of the Application by the Defendants and its complexity. The Court has the advantage in making that determination, of a competing Statement of Costs from the Defendants representatives placed before it, which exceeds the costs claimed by the Claimant by nearly 48% of them. The hourly rates charged by the Defendants’ representatives and their counsel’s brief fee, are also significantly higher than those charged by the Claimant’s representatives. Even if the amount claimed by the Defendants was considered to be excessive, the measure of exceedance leaves the Court in no doubt that the Claimant is entitled to recover the costs he has incurred on the Application as claimed in full without any reduction and has made its order accordingly.

The Dubai International Financial Centre

CFI 089/2023 Jeffrey Stone v (1) Abhi Fintech Limited (2) Abhi Limited

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You are here: BAILII >> Databases >> The Dubai International Financial Centre >> Jeffrey Stone v (1) Abhi Fintech Limited (2) Abhi Limited [2025] DIFC CFI 089 (16 April 2025) URL: https://www.bailii.org/ae/cases/DIFC/2025/DCFI_089.html Cite as: [2025] DIFC CFI 89, [2025] DIFC CFI 089