Between: Abdulhameed Dhia Jafar Plaintiff v (1) Abraaj Holdings (in official liquidation) (2) GHF General Partner Ltd (in its capacity as general partner of GHF Fund LP (formerly Abraaj Growth Markets Health Fund LP) and GHF Fund (B) LP (formerly Abraaj Growth Markets Health Fund (B) LP)) (3) The GHF Group Ltd (formerly The Abraaj Healthcare Group Ltd) (4) Abraaj General Partner VIII Ltd (in its capacity as general partner of Neoma Private Equity Fund IV LP (formerly known as Abraaj Private Equity Fund IV LP)) Defendants

• Jurisdiction: Cayman Islands
• Judgment Date: 17 January 2022
• Docket Number: FSD NO. 203 OF 2020 (NSJ)
• Court: Grand Court (Cayman Islands)

Between:

Abdulhameed Dhia Jafar

Plaintiff

and

(1) Abraaj Holdings (in official liquidation)

(2) GHF General Partner Limited (in its capacity as general partner of GHF Fund LP (formerly Abraaj Growth Markets Health Fund LP) and GHF Fund (B) LP (formerly Abraaj Growth Markets Health Fund (B) LP))

(3) The GHF Group Limited (formerly The Abraaj Healthcare Group Limited)

(4) Abraaj General Partner VIII Limited (in its capacity as general partner of Neoma Private Equity Fund IV LP (formerly known as Abraaj Private Equity Fund IV LP))

Defendants

FSD NO. 203 OF 2020 (NSJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

HEADNOTE

Costs orders to be made following leave to amend (by way of a complete redrafting of) the Plaintiff's statement of claim – should costs be taxed on the indemnity or standard basis? – the proper approach to be taken where allegations of fraud, dishonesty and conspiracy are withdrawn otherwise than shortly before the trial – whether a percentage-based costs order should be made – whether to order that taxation take place forthwith – whether to order a payment on account and if so on what basis

Appearances:

Mr Michael Bloch QC instructed by Nelsons on behalf of the Plaintiff

Mr Peter Sherwood of Carey Olsen on behalf of the First Defendant

Mr Stephen Atherton QC and Sarah Tresman instructed by Walkers on behalf of the Second and Third Defendants

Mr Andrew Ayres QC instructed by Ogier for the Fourth Defendant

IN CHAMBERS

Introduction

1 This is my judgment dealing with the costs and other consequential issues arising on the Plaintiff's application for leave to amend his SOC in these proceedings. In my judgment dated 15 December 2021 I explained why I would grant the Plaintiff's application for leave to amend (on condition that two amendments be made to the Plaintiff's Concise Statement of Claim) and set out the form that the amendment should take. This judgment deals with the remaining issues that arise on the Plaintiff's application, namely whether the Court should order that the undertakings sought by the Plaintiff should be given and the appropriate costs orders. In this judgment I use the same defined terms as those set out in my earlier judgment.

2 The Plaintiff has agreed to pay to the Defendants, to be taxed on the standard basis if not agreed, their costs of and occasioned by the amendments and any costs which are only referable to those claims which the Plaintiff no longer wishes to pursue. As I understand it, there was also no dispute that if the Court decided to order the Plaintiff to pay costs, the Court should order that interest on costs be paid at the rate of 2.375% per annum from the date of payment by the relevant Defendant of the fees and expenses covered by the order until the date of the Court's order and thereafter at the judgment rate of interest of 2.375% per annum until the date of payment (in accordance with the Judgment Debts (Rates of Interest) Rules (2021 Revision)). However, the Defendants do not consider this to be sufficient. They seek different and additional orders. The following issues arise for determination:

• (a). can and should the Court dispose of the costs issues now or wait, as the Plaintiff argued was necessary, until the CMC scheduled for 23–24 March 2022?

• (b). if the Court is satisfied that the costs issues should be dealt with now, should the Defendants' costs be taxed on the indemnity basis?

• (c). whether or not costs are to be taxed on the standard or indemnity basis, should the Court order that the GHF Parties and the Fourth Defendant be paid a percentage of their taxed costs incurred to date in the whole proceedings in the action, or, as the Plaintiff contended, only those taxed costs referable to the claims (or facts and allegations) made in the SOC which the Plaintiff had withdrawn and no longer wished to pursue (or rely on)? On this issue, Mr Sherwood, acting for the joint official liquidators of the First Defendant, pointed out at the hearing that he did not have instructions as to whether to seek a percentage-based costs order and noted that the First Defendant had not filed evidence of its costs to date. Mr Sherwood requested that if I decided to make a costs order on that basis, the First Defendant be given leave to make an application for such an order at a later date and after the handing down of this judgment.

• (d). should the costs be taxed forthwith?

• (e). should the Plaintiff be ordered to make a payment on account of the costs of the GHF Parties and the Fourth Defendant, and if so, what is a reasonable sum which the Plaintiff should be required to pay?

• (f). if a payment on account is ordered, should the GHF Parties and the Fourth Defendant be required to undertake to the Plaintiff that they will exercise all reasonable care, and take all reasonable steps, to ensure that they are at all times in a position to meet their liabilities and contingent liabilities including their contingent liabilities relating to any judgment that the Plaintiff may be awarded on his claims as well as any overpayment of costs paid on account?

3 I have decided that:

• (a). the costs issues can and should be disposed of at this stage and it is both unnecessary and undesirable to wait until the CMC in March next year.

• (b). the Plaintiff must pay the Defendants' costs to be taxed on the standard and not the indemnity basis, if not agreed.

• (c). the Plaintiff must pay (i) the Defendants' costs of and occasioned (or caused) by the amendments and (ii) the Defendants' costs in respect of the withdrawn claims, and of investigating and pleading to the facts and allegations which were included in the SOC but which are not included or restated in the Concise Statement of Claim, to the extent that those costs were and can be treated as wasted.

• (d). taxation of these costs shall take place at the end of these proceedings and there shall be no order for taxation forthwith.

• (e). the Plaintiff shall make a payment on account of these costs to the GHF Parties in the sum of US$338,235.66 and to the Fourth Defendant in the sum of US$236,544.13 (calculated as 25% of 50% of the GHF Parties' and the Fourth Defendant's historic costs claimed on this application on the assumption that costs are to be taxed on the standard basis). These payments shall be made within 28 days of the date of the order made to give effect to this judgment.

• (f). no such undertaking is required.

The nature and extent of the amendments

4 Since the question of which costs orders are to be made are affected by the nature and extent of the amendments made to the Plaintiff's case, it is convenient to start by considering the parties' submissions on this point.

5 The Plaintiff said that there were three main factual topics which arose on the SOC which will not arise on the Concise Statement of Claim. First, there was what was referred to in the SOC as the systematic fraud, a fraud which was pleaded as relating to the Abraaj Group as a whole and dating back to 2014 (see [2] and [3] of the SOC). Secondly, there were the activities of the Abraaj Leadership (see [44] of the SOC). Thirdly, there were the dealings between the Abraaj Group and the Plaintiff which were relevant to the issue of the cancellation of the loans under UAE law (see [27] to [236] of the SOC). The Plaintiff noted that a positive case was pleaded as regards the relevant UAE law, which the GHF Parties had not admitted in their defence (at [270(4)]). The Plaintiff said that he hoped that it will not be necessary to investigate any of these three factual topics on the basis of this amended case, although he accepted that whether this proved to be correct would at least in part depend on how these and the related proceedings were subsequently conducted and developed.

6 The GHF Parties argued that as a result of his amendments to the SOC and reliance on the Concise Statement of Claim the Plaintiff had:

• (a). discarded (i) his cause of action in unlawful means conspiracy; (ii) the previous articulation of the cause of action in deceit; (iii) his proprietary claim, said to have arisen under UAE law, to monies received by the Third Defendant; (iv) his claim to monies received by the Defendants, which monies were said to be subject to a constructive trust as being the fruits of a fraud, (v) the claim to monies received by the Defendants, which monies were said to be subject to a constructive trust following rescission of the loans he alleged he had made and (vi) the cause of action based upon knowing or unconscionable receipt (the GHF Parties labelled these and I shall define them as the Withdrawn Claims).

• (b). amended and re-articulated the claim against the GHF Parties based in deceit and amended the claim against the Third Defendant in unjust enrichment (the GHF Parties labelled these, and I shall define them, as the Pursued Claims).

• (c). introduced a new cause of action in unjust enrichment, which was now asserted against the Healthcare Fund (the GHF Parties labelled this, and I shall define it, as the New Claim).

7 The GHF Parties submitted that there was only a limited overlap between the Withdrawn Claims and the Pursued and New Claims. This was because (a) while the claim based in deceit had been one of the many elements of the Plaintiff's previous claim in unlawful means conspiracy (as the alleged unlawful means), the unlawful means conspiracy claim had been withdrawn and the vast majority of the elements of that claim no longer appeared in the Concise Statement of Claim (that is all the elements save for the alleged deceit were withdrawn); (b) the claim in deceit was now premised on a different factual matrix (including reliance on a different implied oral misrepresentation, different particulars of falsity, different allegations of reliance, and different allegations of loss); (c) while the alleged unlawful means conspiracy...