Nael v Niamh Bank [2024] DIFC CA 015

January 09, 2025 Court of Appeal - Judgments

Claim No: CA 015/2024

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE

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

IN THE COURT OF APPEAL
BEFORE H.E. CHIEF JUSTICE WAYNE MARTIN, H.E. JUSTICE MICHAEL BLACK KC AND H.E. JUSTICE ANDREW MORAN

BETWEEN

NAEL

Claimant/Respondent

and

NIAMH BANK

Defendant/Appellant

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Hearing :	10 December 2024
Counsel :	Mr Rupert Reed KC and Gregor Hogan instructed by Primecase, for the Respondent/Claimant Mr Tom Stewart Coats instructed by Holman Fenwick Willan, for the Appellant/ Defendant
Judgment :	9 January 2025

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JUDGMENT OF THE COURT OF APPEAL

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UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 25 October 2024 in ABR-020-2022 granting permission to appeal on all grounds

AND UPON Hearing Counsel for the Appellant and Counsel for the Respondent on 10 December 2024 before H.E. Chief Justice Wayne Martin, H.E. Justice Michael Black KC and H.E. Justice Andrew Moran

IT IS HEREBY ORDERED THAT:

1. The appeal is dismissed.

2. The parties shall exchange written submissions on interest and costs within 7 days of the date of this Judgment. The Court shall undertake an immediate assessment of any costs claimed by a party in relation to all costs not the subject of a previous Order and therefore the written submissions should be accompanied by a written statement of the costs in accordance with Rules 38.34 and 38.35 of the Rules of the DIFC Courts.

3. The parties may respond in writing within 7 days of receipt of the written submissions.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 9 January 2025
At:3pm

H.E. Chief Justice Wayne Martin:

I agree with H.E. Justice Michael Black KC.

H.E. Justice Michael Black KC:

INTRODUCTION

1. This is an appeal by the Defendant, Niamh Bank (the “Bank” ) against the Order of H.E. Justice Shamlan Al Sawalehi (the “Judge” ) dated 1 August 2024 whereby he refused to set aside an Order dated 30 October 2023 recognising an arbitral award dated 18 July 2022 (the “Award” ) in favour of the Claimant, Nael (the “Employer” ) made with the permission of the Judge dated 25 October 2024.

2. In this Appeal, the Court shall consider the ambit of the public policy ground for refusing enforcement and recognition of an arbitral award embodied in Article 44(1)(b)(ii) of the DIFC Arbitration Law (the “Law” ). A typographical error appears to have crept into a number of documents on the Court file (including the Grounds of Appeal and reflected in the Permission to Appeal) whereby the Article was referred to as 44(1)(b)(vii). There is no such Article in the Law but no confusion has arisen. Article 44(1)(b)(ii) provides:

“Recognition or enforcement of an arbitral award, irrespective of the State or jurisdiction in which it was made, may be refused by the DIFC Court [only]:

…

if the DIFC Court finds that:

…

the enforcement of the award would be contrary to the public policy of the UAE.”

FACTUAL BACKGROUND

3. In October 2018, the Employer entered into a contract with a building and engineering contractor (the “Contractor” ) for the infrastructure works of a large public project. Under the terms of the contract the Contractor was required to procure a number of guarantees or bonds from a bank, the Ban