Bassam Khalifa v S.W.I.F.T. (Dubai) Limited [2020] DIFC CA 005 (02 November 2020)

Claim No. CA 005/2020 THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

Court
In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler
Ruler
of Dubai IN THE COURT
Court
OF APPEAL BEFORE CHIEF JUSTICE
Chief Justice
ZAKI AZMI, JUSTICE ROGER GILES AND H.E. JUSTICE SHAMLAN AL SAWALEHI BETWEEN BASSAM KHALIFA Claimant
Claimant
/Respondent and S.W.I.F.T. (DUBAI) LIMITED Defendant
Defendant
/Appellant ORDER OF

Claim No. CA 005/2020

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

Court

In the name of His Highness Sheikh Mohammad Bin Rashid Al Maktoum, Ruler

Ruler
of Dubai

IN THE COURT

Court
OF APPEAL
BEFORE CHIEF JUSTICE
Chief Justice
ZAKI AZMI, JUSTICE ROGER GILES AND H.E. JUSTICE SHAMLAN AL SAWALEHI

BETWEEN

BASSAM KHALIFA

Claimant

Claimant
/Respondent

and

S.W.I.F.T. (DUBAI) LIMITED

Defendant

Defendant
/Appellant


ORDER OF THE COURT OF APPEAL


ORDER

UPONthe judgment of the Court

Court
of Appeal, in this matter, issued on 2 November 2020

AND UPONthe parties providing written submissions on costs on 16 November 2020

IT IS HEREBY ORDERED THAT:

1. We note that the Claimant provided a bill of costs and proposed an immediate assessment. That does not arise.

2. We order that each party bear its and his own costs of the appeal.


Issued by:
Nour Hineidi
Registrar

Registrar

Date of issue: 29 November 2020
Time: 11am

SCHEDULE OF REASONS

1. In our judgment issued on 2 November 2020, directions were given for written submissions on costs. The submissions having been received; this is our determination.

2. The Defendant asks that the Claimant pay 75% of its cost of the appeal and 75% of its costs of the CFI proceedings. In summary, it says that it succeeded on ground 1 in the appeal and is “the ultimate winner of the appeal“, that the success was significant because the ongoing litigation will be considerably reduced, and that the question on which it succeeded took up more time at the hearing than the other questions. As to the CFI proceedings, it says that the 75% will “reflect the relative success of [the Defendant] in the Court of First Instance proceedings”, because the appellate decision means that it now succeeds on the main issue in those proceedings. It adds reference to the Judge

Judge
’s observations on the conduct of the Claimant’s legal representative
Legal Representative
when making his costs order.

3. The Claimant asks that the Defendant pay 80% of his costs of the appeal, and that the costs at first instance not be disturbed. Also in summary, he says that the Defendant succeeded on one issue only, on a basis not raised at first instance, and on an issue which is not decisive of the litigation, and that the costs should reflect success on one out of five questions in the appeal by a discount of 20% from full recovery.

Appeal Costs

4. We do not regard the Defendant as the ultimate winner on appeal. The Judge determined discrete preliminary issues. The Defendant succeeded as to issue 5(a), but failed in its challenge to the Judge’s reasons on that issue and succeeded on the new argument that all disclosures on which the Claimant relied were made before the Operating Law came into force. It failed to disturb the outcome on the other issues. While as things stand its success brings an end to the whistleblowing claim, it failed on the issues which could have brought an end to the penalties claim and the counterclaim

Counterclaim
, which remain as significant matters for trial.

5. There were effectively five questions on appeal: issue 5(a) with two components of disclosure before the Operating Law came into force and entitlement to compensation under Article 40; issue 6 with two components of conclusion by concession and holding of liability to penalty; and issue 7. However, we do not think a question-based approach should be adopted. The two components of issue 5(a), on which the whistleblowing claim turned, received greater attention in written and oral submissions, and the Defendant did succeed on that issue. On an overall assessment, we consider that the Defendant’s success on that issue (albeit in one component only) and its failure on the other issues, and the corresponding failure and success of the Claimant, balance out, such that no order for costs should be made whereby each party is left to pay its and his own costs.

CFI Costs

6. When the Defendant’s success as to issue 5(a) was on an argument not raised at first instance, and it failed in its challenges to the Judge’s reasons on that issue and to His Excellency’s decision on the other issues, the costs order made by the Judge should remain. The limited success does not reflect back to warrant a different order.

Order

7. We note that the Claimant provided a bill of costs and proposed an immediate assessment. That does not arise.

8. We order that each party bear its and his own costs of the appeal.