Claim No: CFI 098/2021
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
Al BUHAIRA NATIONAL INSURANCE COMPANY
Claimant/Applicant
and
(1) HORIZON ENERGY LLC
(2) AL BUHAIRA INTERNATIONAL SHIPPING INC
Defendants/Respondents
ORDER OF H.E. DEPUTY CHIEF JUSTICE ALI AL MADHANI
PENAL NOTICE
IF YOU HORIZON ENERGY LLC AND/OR AL BUHAIRA INTERNATIONAL SHIPPING INC DISOBEY THIS ORDER YOU MAY BE HELD IN CONTEMPT OF COURT AND YOUR DIRECTORS MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED OR THE COMPANY MAY BE FINED AND HAVE ITS ASSETS SEIZED.
ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENTS TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.
UPON the Claimant’s application dated 18 November 2022 seeking permission to appeal the order of H.E. Deputy Chief Justice Ali Al Madhani dated 9 November 2022 (the “Permission to Appeal Application”)
AND UPON the Claimant’s Application No. CFI-098-2021/6 dated 24 November 2022 seeking an interim anti-suit injunction (the “Interim Anti-Suit Injunction Application”)
AND UPON reading the Fourth Witness statement of Leonard Omeed Soudagar and the accompanying exhibit LS4
AND UPON the Claimant giving the undertaking set out in Schedule 2 to this Order
AND UPON reviewing the submissions of the parties and the relevant documents on the Court’s file
IT IS HEREBY ORDERED THAT:
1. The Permission to Appeal Application is granted on the basis that the appeal has a real prospect of success.
2. The Interim Anti-Suit Injunction Application is granted.
3. In this Order:
(a) the “Respondents” means the Defendants;
(b) the “Sharjah Proceedings” means the proceedings commenced by the Respondents before the Sharjah Courts with case number 5182/2022; and
(c) the “Dispute” means the dispute between the Claimant and the Respondents in relation to the insurance policies set out in Schedule 1, including any dispute as to the existence or validity of any of those agreements and the rights and liabilities of the parties arising thereunder.
Injunction
4. Until final determination of the appeal, the Respondents, whether by themselves, their servants or agents or affiliates or howsoever otherwise:
(a) must not continue or prosecute or take any further steps in or assist in the continuation or prosecution or taking of further steps in or otherwise participating in the Sharjah Proceedings; and
(b) must not commence or pursue, or take any further steps, or procure or assist the pursuit of any proceedings in relation to the Dispute in any court, tribunal or other dispute resolution forum other than in the DIFC Courts.
Interpretation
5. Respondents who are individuals who are ordered not to do something must not do it themselves or in any other way. They must not do it through others acting on their behalf or through their subsidiaries or affiliates on their instructions or with their encouragement.
6. Respondents which are not an individual which are ordered not to do something must not do it themselves or by their subsidiaries, affiliates, directors, officers, partners, employees, or agents or in any other way.
Costs
7. The costs of Interim Anti-Suit Injunction Application are reserved.
Parties other than the Applicant and Respondents
8. Effect of this Order
It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this Order. Any person doing so may be imprisoned, fined, or have their assets seized.
9. Persons outside the DIFC
(a) Except as provided in paragraph 9.b below, the terms of this Order do not affect or concern anyone outside the jurisdiction of this Court.
(b) The terms of this Order will affect the following persons in a country or state outside the jurisdiction of this Court:
i. the Respondents or their officers or agents appointed by power of attorney;
ii. any person who:
1. is subject to the jurisdiction of this Court;
2. has been given written notice of this order at his residence or place of business within the jurisdiction of this Court; and
3. is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order; and
iii. any other person, only to the extent that this Order is declared enforceable by or is enforced by a court in that country or state.
COMMUNICATIONS WITH THE COURT
10. All communications to the Court about this Order should be sent to:
The Registry
Ground Floor
Building 4
Gate District
DIFC, UAE
Telephone: + 971 4 427 3333
Fax: +971 4 427 3330
Email: registry@difccourts.ae
The Registry offices are open between 8.30am to 4pm, Monday to Friday (excluding public holidays).
Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 19 January 2023
At: 11am
SCHEDULE 1
The insurance policies referenced in paragraph 3.c of the Order are annexed herein.
SCHEDULE 2
If the Court later finds that this order has caused loss to either of the Respondents and decides that either of the Respondents should be compensated for that loss, the Applicant will comply with any order the Court may make.
SCHEDULE OF REASONS
1. I have concluded that the Claimant has a real prospect of successfully establishing that, contrary to my decision given on 9 November 2022 (the “Order”), it is entitled to a permanent anti-suit injunction restraining the Defendants from continuing proceedings in Sharjah. My view (on the balance of probabilities) is reflected in the Order, but I nevertheless take the view having considered the Claimant’s application for permission to appeal that the Claimant has a realistic as opposed to fanciful chance of being correct in its own view, which is sufficient for the grant of permission to appeal.
2. Consistently with this conclusion, in my view the Claimant is also entitled to an interim injunction restraining the Defendants in respect of the Sharjah proceedings pending the outcome of the appeal. Implicit in my assessment that the Claimant has a real prospect of establishing that it is entitled to the permanent anti-suit injunction is, in my view, an acceptance that the conditions for the grant of an interim injunction have been satisfied, for example that there exists a serious issue to be tried. Moreover, inNovartis AG v Hospira UK Ltd [2014] 1 WLR 1264 at [41(2)], the English Court of Appeal stated in respect of the grant of interim injunctions pending appeal where the claimant has lost at first instance:“If the court is satisfied that there is a real prospect of success on appeal, it will not usually be useful to attempt to form a view as to how much stronger the prospects of appeal are, or attempt to give weight to that view in assessing the balance of convenience.”
3. While this is the second time that the Claimant has applied for an anti-suit injunction on an interim basis, the first application (or “request” as I referred to it previously) failed on largely procedural grounds. The present interim anti-suit injunction application is the first one, therefore, to be considered solely on its merits.