Seyed Mohammad Ata Shobeiry v Kalpesh Patel

The Defendant applies to vary the judgment in default of defence entered against him on 23 September 2022. That judgment is in the sum of £1,449,514.34 comprising a principal sum of AED (Footnote: ¹) 5,000,000, converted to sterling, together with interest and court fees. In short, it is the Defendant’s case that:

The underlying claim is a debt claim, arising from two loans from the Claimant to the Defendant: the first of AED 1,800,000 made on 9 March 2014 and repayable on 9 September 2014; and the second of AED 3,200,000 made on 31 March 2014 and repayable on 30 April 2014. It is common ground that no repayment of these loans was made prior to the issue of proceedings. It should be noted that, since the Defendant did not file a Defence in these proceedings, he has not raised the issue that was relied on in the Dubai proceedings referred to below to the effect that the parties agreed that repayment of the loan would take place by the transfer of the Defendant’s interest in a property.

The application was listed before me for 2 hours on 2 October 2023. As will be seen, the hearing did not follow the course that either party had anticipated and both advocates had to make submissions beyond that which had been covered in their skeleton arguments. I reserved judgment to enable me to consider more fully the issues that arose.

I am obliged to Mr Topping for the procedural chronology at paragraph 6 of his skeleton argument. Adopting that with slight changes:

I would note certain points that are relevant to or arise from the chronology:

At the hearing before me, I was provided with an electronic bundle that contains a series of witness statements:

I had skeleton arguments from each side and I heard oral submissions from Mr Warwick KC for the Defendant and from Mr Topping for the Claimant.

During the hearing, I had several concerns about issues of procedure and practice. Given the limited available time, it was not possible to explore these in any detail. Indeed, I indicated during the hearing that time was better not wasted with me complaining about these matters, given the developing arguments on the merits of the application and the short time estimate

However, since this is a reserved judgment and I have had some time to address all issues, it would be remiss not to mention matters that had a significant affect on the efficient use of court time.

I would not expect a paying party to meet the cost of material that was not even put in front of me during the hearing. I would also not expect them to have to meet the cost of the inadequate preparation of material that has led to available judicial time being wasted on putting right those failures of preparation.

I have now had the opportunity to read the supplemental skeleton argument of the Claimant and the attached document, including the statement of Mr Zebida. The witness statement does not assist on determining the issues in this case. However, I should note that the Defendant, though Mr Zebida, appears to dispute the Claimant’s entitlement to any relief in the English courts.

At the hearing before me, the Defendant did not pursue the application for a stay of execution. Accordingly, I was concerned only with the application to vary the judgment of 23 September 2022.

As regards the application to vary the judgment, the submissions fell in to two categories.

The Defendant’s application to set aside is made pursuant to CPR Part 13. The relevant rules provide:

“Cases where the court must set aside judgment entered under Part 12

13.2

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a)

in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b)

in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c)

the whole of the claim was satisfied before judgment was entered.

Cases where the court may set aside or vary judgment entered under Part 12

13.3

(1)

In any other case, the court may set aside⁾ or vary a judgment entered under Part 12 if –

(a)

the defendant has a real prospect of successfully defending the claim; or

(b)

it appears to the court that there is some other good reason why –

(i)

the judgment should be set aside or varied; or

(ii)

the defendant should be allowed to defend the claim.

(2)

In considering whether to set aside⁾ or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”

Cases which fall within CPR 13.2 are often described as cases of an “irregular judgment” although that is not the term used in Part 13. In any event, the Defendant accepts that this is not the case which falls within CPR 13.2 although, as identified below, he argues that the judgment is in fact “irregular” in the broader sense that it should not have been entered.

It is common ground that the CPR 13.3 criteria apply to this application, albeit that the Defendant contends that they must be applied in the context of a judgment which can properly be described as “irregular” or perhaps “plain wrong.” Accordingly, the court is required to consider whether the application was made “promptly” under CPR13.3. Of necessity, that is concerned with the period between the entering of judgment and the making of the application to set aside, in this case from 23 September 2022 (when the default judgment was entered) until 7 September 2023 when this application was made.

Until recently, there has been debate whether the principles of CPR 3.9 are to be applied in an application to set aside default judgment. Despite the decision of the Court of Appeal in Gentry v Miller [2016] EWCA Civ 141, there have been different decisions on this issue at first instance. However the matter has now seemingly been put beyond dispute by the decision of the Court of Appeal in FXF v English Karate [2023] EWCA Civ 891. In his judgment with which the rest of the court agreed, the Master of the Rolls stated unambiguously that the relief from sanction test set out in Denton v White applies to an application under CPR 13.3. Whilst neither party had referred either to the decision in FXF or the principles of applications for relief from sanction, within their skeleton arguments, both accepted during oral submissions that those principles in fact applied and addressed them in oral argument. As I indicate below, the Defendant’s application for permission to appeal addresses an argument that FXF was in fact wrongly decided.

The Defendant contends that the judgment sum is erroneous and should not have been the subject of the request for judgment.. The case was originally put on the sole basis that the judgment sum should be in AED not sterling - see paragraphs 18 and 19 of Mr Price’s statement of 28 July 2023 (served for the purpose of the application in the TOLATA claim). In his statement of 7 September 2023 in support of this application, Mr Price concedes that the court had a residual discretion to determine whether the judgment should be expressed in sterling or in the foreign currency but goes on to contend that it would be unjust to give the judgment in sterling when the exchange markets have been particularly volatile. At paragraph 20 of that statement, he says:

“The time when the Default Judgment was entered in September 2022, the UK Government was in somewhat of a turmoil (sic), with Liz Truss as Prime Minister and Kwasi Kwarteng as Chancellor of the exchequer where the sterling rate to the Dollar fell to 1.07. Subsequently, sterling has sharply recovered in value and there clearly would be a less value in sterling to pay a judgment expressed in UAE AED today than there would have been in September 2022.”

He sets out certain spot rates that are said to support this analysis.

In the Defendant’s skeleton argument for the purpose of the hearing on 2 October 2023, it is asserted that, using the sterling figure claimed in the Claim Form of £1,278,024.26, the interest is wrongly calculated. The skeleton argument goes on to argue that in any event the judgment should have been expressed in AED.

In oral submissions, Mr Warwick KC sought to show how the error in the request for judgment had come about. Relying on the sterling figure claimed in the Claim Form, he submitted that what appeared to have happened was that the figure of £1,278,024.26 (being the sterling equivalent of AED 5,506,239.73) claimed in the Claim Form had been mistakenly transposed into the request for judgment as £1,291,692.48, but that the request for judgment had then wrongly claimed interest of £129,786.18 for interest up to the issue of the claim in addition to that sum. In fact, Mr Warwick KC contended that it was clear from paragraph 14 of the Particulars of Claim that the figure claimed, whether expressed in AED or the sterling equivalent included interest to the issue of the claim.

If this were the correct analysis, this would be a simple case of miscalculation by double counting of the interest and, putting aside issues relating to the relief from sanctions, the error in the judgment would be obvious. However, it was not my understanding of the Claimant’s case that that was how the figure in the request for judgment had been calculated, given the witness statement from Mr Ewan Cooper dated 22 September 2023. Accordingly, during Mr Warwick KC’s submissions, I invited Mr Topping to address me on how the figure had been calculated. He confirmed what had been my understanding (and seemingly the understanding of Mr Price when he prepared his statement of 7 September 2023) that the difference in the figures arose not from the double counting of interest but rather from the effect of exchange rate fluctuations.

The Defendant’s alternative argument is, as I have indicated, that the judgment should have been entered in AED, not sterling. Mr Warwick KC contends that a litigant who seeks to enter a default judgment must be trusted correctly to follow the procedure of CPR Part 12. That includes, where the claim is for default judgment for a specified amount, the judgment being for “the amount of the claim” (CPR12.5(2)). That requirement could not be met here, where the claim is principally for a sum expressed in AED and, even on the Claimant’s secondary case, is for a different sterling sum than that in the request for judgment.

Mr Warwick KC concedes that paragraph 40.2.18 of the White Book and the authorities therein support the proposition that the court has the power to give judgment in either a foreign currency or sterling. However, an application for default judgment does not involve the court exercising any such power. Rather, the entry of default judgment for a specified amount is a simple administrative process where, so long as the applicant certifies certain matters, the court will enter the judgment in the amount sought. In particular, since a request for default judgment is not likely to be referred to a judge, if it is open to the Claimant to request judgment in a different currency than that of the Claim Form, the determination as to the currency of the judgment would be that of the Claimant rather than the Court.

Mr Warwick KC urges me to find that it is simply not open to a Claimant to pick its currency and that, since the claim was expressed primarily in AED and that was the currency of the loan, the Claimant should not have sought judgment in sterling

If the court were exercising a judgment as to the appropriate currency, the circumstances here would, the Defendant contends, point strongly in favour of judgment in AED:

If on the other hand the Claimant was at liberty to seek judgment in sterling the Defendant contends that the judgment should have been in the amount sought in the Particulars of Claim, namely £1,278,024.26 (plus any subsequent interest and recoverable costs). The Claimant was not at liberty to apply a later exchange rate in seeking judgment in sterling.

In support of this proposition, Mr Warwick KC drew my attention to the potential dilemma of a Defendant in the position of Mr Patel who had no defence to the claim that had been brought. He might reasonably not file a Defence in circumstances in which he has no arguable defence to the claim. However he would do so in the assumption that any judgment entered as a result was expressed in the figures claimed in the Claim form, rather than a different figure based on a different exchange rate.

As I have identified above, the Claimant contends that the sum sought in the request for judgment is based upon a different exchange rate than that upon which the Particulars of Claim is based. This is explained in the witness statement of Mr Cooper.

The Claimant contends that he was entitled to seek judgment in sterling. The contract does not specify that payments may only be made in AED. Accordingly the Court had a discretion to enter judgment in sterling see paragraph 40.2.18 of the White Book and the authorities referred to therein.

In fact, the Claimant puts his case rather higher than this, referring, through the statement of Ms Stanway, to his being “absolutely entitled to calculate the currency exchange rate as at the date when payment is due, which is the date of the judgment request and when the judgment is then made.” No authority is referred to for this proposition. It is not obviously supported by the passage from the White Book at paragraph 40.2.18, which refers to the Court having a power to give judgment in differing currencies and goes on to say, “it is not clear whether the claimant has the right to elect that the judgment should be expressed in sterling or in a foreign currency.”

More generally, the Claimant seeks to rely on the conduct of the Defendant throughout the litigation, which has been to seek to use any means to avoid meeting his liabilities. Even now, notwithstanding the judgment entered both in Dubai and in England, only a small part of the debt has been repaid. The court should not tolerate what is an obvious attempt by the Defendant to delay matters further.

As foreshadowed above, I am persuaded by the evidence of Mr Cooper that the reason for the discrepancy in the figures is the use of a different exchange rate rather than double counting of interest. Quite simply, Mr Cooper’s figures add up; the argument advanced by the Defendant does not do so, since the amount that it is suggested has been transposed from the Particulars of Claim to the request for judgment is in fact different to the figure in the request. I can understand why the similarity in the figures might lead to the suspicion that there is transposition of the figure with an associated minor error. But when one analyses Mr Cooper’s calculations, it is far more likely that there is no error at all but rather the Claimant has used a later exchange rate.

The more interesting question is whether it was open to the Claimant to do this. I accept Mr Warwick’s argument that the process of entering a default judgment is normally an entirely administrative act in which there is no judicial input. There is certainly no evidence of any judge having considered the amount or currency of the judgment sought here and therefore it cannot be said that the court has exercised a power to enter judgment in a particular currency. Rather, it has simply entered judgment for the sum sought by the Claimant in its request for judgment in the currency of that request.

I was told during this hearing that there are no authorities on whether it is open to a party requesting a default judgment to use a different currency than that in which the claim is expressed in the Claim Form or Particulars of Claim and/or to seek judgment for a different figure than that in the Claim Form or Particulars of Claim. Notwithstanding Mr Warwick’s encouragement to rule broadly on this issue, I hesitate to do so, since I have not heard submissions on the broader consequences of so doing.

However, given that one of the threshold considerations for varying a judgment is whether there is good reason to do so, then, subject to the issue of whether this application was brought promptly and/or whether the Defendant should be given relief from sanction, it is necessary for me to rule upon whether it was open to the Claimant in the circumstances of this claim to enter judgment in the sum claimed in sterling.

I am satisfied that this is not a case in which it was open to the Claimant to request as of right a judgment in sterling at a different exchange rate than that relied on in calculating the figures in the Claim Form. I say so for the following reasons:

I do not exclude the possibility that the court might in an appropriate case conclude that judgment in a debt claim should be entered in sterling (or some other foreign currency), even though the currency of the debt is some other foreign currency. This might be so in two circumstances:

It is self-evident that the issue of whether a judgment should be entered in a particular currency is one that a Judge can only address if the issue is brought to her attention. As Mr Warwick KC rightly says, that will not normally be the case where a default judgment is sought. Is it then open to the Claimant simply to pick the currency of choice and require the Defendant to apply to vary the judgment (with the procedural consequences noted below)? On the fact of this case, I do not see that that the Claimant could justify seeking the default judgment at a different exchange rate on the first basis set out above. The alternative circumstance in which the court might consider entering judgment in a different currency than that of the debt is not met here. In any event, there is no evidence to persuade me that, at the time of entering judgment, a judgment in sterling more properly expressed the Claimant’s loss through non payment of the debt than did a judgment in AED. It follows that the Claimant should not have sought judgment in a different sterling figure than that referred to in the Particulars of Claim, where the difference in the figure arose solely from the use of an exchange rate calculated on a different date. That does not render the judgment unenforceable but, subject to the question of whether the Defendant has applied promptly and whether he is entitled to relief from sanction, I would vary the judgment to express the judgment sum in AED, since that currency appears to me most properly to express the Claimant’s loss.

My determination that the Claimant was wrong to seek the judgment that he did does not alone suffice for the Defendant to persuade the court that the judgment figure should be varied. One would obviously expect those seeking judgment in default to ensure that the judgment sum sought properly reflected the claim that had been brought. One might argue from first principles that where the judgment is entered in a figure or currency other than that of the claim that there should be an absolute right to have the judgment set aside or that, at the very least, the criteria for the applicant should be less stringent than those of relief from sanction. However the Civil Procedure Rules and binding authority makes clear that neither of these are in fact the case:

I must therefore go on to consider:

The Defendant observes that what constitutes promptness under CPR 13.3(2) varies from case to case. In particular, it would be wrong to measure the promptness of the application from the date of when judgment was entered if the Defendant did not know that it had not been entered until a later date.

In any event, whether the Defendant acted in a prompt manner is not the sole deciding factor and the court should instead look to the overall consequences that follow from the failure to set aside the judgment. The failure to set aside judgment would lead to injustice against the Defendant in light of a wrong amount owed. Thus, the Defendant argues that the court's consideration of the promptness of the Defendant’s application should be weighed against other competing considerations. In this exercise, Mr Warwick KC submits that the promptness of the application should be outweighed by the injustice that would follow from refusing the Defendant's application to vary the default judgment.

The Claimant takes the position that the Defendant’s application to vary the default judgment was not made promptly. Mr Topping emphasises the fact that the default judgment was handed down on 23 September 2022. It was served by email and post, in accordance with an earlier order for alternative service on 14 October 2022, as demonstrated by certificates of service on the court file dated 18 October 2022. It remained unchallenged until 7 September 2023. Mr Topping submits that the Defendant's application to vary the default judgment was clearly delayed and that the Defendant was not oblivious to the proceedings that led to the default judgment being awarded against him but rather chose a path of inaction.

Although Mr Topping concedes that the promptness of the Defendant's application is only one factor of the Court's general discretion provided by CPR 13.3(1) to set aside judgment he submits that it should be a deciding one given the nature of the facts stated above. Mr Topping concludes that the Defendant's delay in making the application is far removed from the concept of promptness under CPR 13.3(2) and thus should play an important factor in the court's rejection of the Defendant's application to vary the default judgement.

The requirement for the court to consider whether the Defendant has act promptly to set aside a default judgment is consistent with the overriding objective of CPR 1.1. Whilst a Defendant is rightly allowed to challenge a default decision that is said to be wrong, the law recognises that they should not use such application in order to frustrate or hinder legitimate steps taken by the opposing party to recover what they are owed. Whilst I accept Mr Warwick's position that what constitutes acting promptly will vary from case to case, the objectives that CPR 13.3(2) seeks to achieve remain clear. It is important to pay close attention to these objectives when looking to the Defendant's behaviour and deciding whether relief from sanctions is available.

As indicated above, subject to whether the Defendant has applied promptly and whether he is entitled to relief from sanction, I would vary the judgment. Nevertheless, there was a clear lack of promptness in making the application. As Mr Topping is right to emphasise, upon entering default judgment on 23 September 2022, the Defendant did not file an application under CPR 13.3(1) until 7 September 2023, almost a year later. In light of this fact, it cannot be concluded that the Defendant acted in a prompt manner under CPR 13.3(2).

If this judgment were to be varied to a sum in AED (or an alternative sum in sterling, though that would not be my preferred variation), this would have clear consequences for the Claimant. In particular, he would have to invite the court to revisit the Charging Order that has been made, doubtless causing greater expense and delay. That would give a further opportunity to the Defendant to obfuscate and avoid payment in a case where there is a clear history of the Defendant doing what he can to frustrate this judgment and avoid repaying the underlying debt.

Mr Warwick invites the court to recognise that the promptness of the application is not the core matter that the court should consider. This touches on the relevance of the merits of the claim when looking to set aside a default judgment. Whilst the Defendant does not seek to rely on 13.3(1)(a), Mr Warwick argues that the result of the default judgment is one of injustice against the Defendant.

There clearly are situations in which a default judgment obtained creates an injustice. Most obviously, a Claimant cannot simply draw a sum out of thin air and claim default judgment against the Defendant for that sum. Another clear example was alluded to in Mr Warwick's oral submissions, in which he submitted (albeit incorrectly) that the Claimant's calculation for the default judgment included the double counting of interest. If it had done so, that would be another example of a clear and obvious error that might be said to create an injustice.

But is the injustice created by the default judgment enough for the court to disregard the Defendant's lack of promptness in submitting the application? In my judgment, the Defendant does not do enough to demonstrate why the lack of promptness should be outweighed on the facts. Whilst I have concluded that a judgment in AED or a different sterling equivalent would have been more appropriate, that is not the only matter for the court to consider. The requirement that the Defendant's application be made promptly is of great importance as to deciding whether to vary the default judgment. I agree with Mr Topping that the Defendant's prolonged inaction following the default judgment weighs heavily against his current application to set aside the default judgment. Furthermore, I disagree with Mr Warwick's position that the injustice that follows the default judgment is one that encourages the court to disregard the Defendant's lack of promptness and overshadows the important objectives of what CPR 13.3(1) is trying to achieve.

For these reasons stated above, I reject Defendant's application to vary the default judgment under CPR 13.3. Despite this outcome, for the sake of completeness I will now look to whether the Defendant would have passed the necessary tests for relief from sanctions.

The Defendant’s written submissions did not deal with the application of Denton principles to the application. In oral submission, Mr Warwick KC described the breach here as “curious” in the sense that it was not necessarily properly considered as a breach at all. As he put it, the hypothetical litigant referred to at paragraph 27 above might not file a defence at all on the simple but rational ground that they did not believe that they had a defence but rather might accept that they were liable to pay the pleaded sum. In those circumstances, their default should not be categorised as “serious.” Further, it was contended that the Defendant’s failure to file a defence might have been because he accepted that he did not have in fact have an arguable defence.

As to the circumstances of the case more generally, Mr Warwick KC repeated his submissions that the court should look to the significance of allowing an erroneous judgment to stand. Indeed, he came close to suggesting that some different test than that in Denton should be applied in the context of an application to set aside a default judgment. He drew my attention to paragraph 21 of Lord Millet's judgment Strachan v The Gleaner [2005] 1 WLR 3204:

In grounds of appeal filed after this judgment was sent out in draft, Mr Warwick KC raised the argument that FXF v English Karate was in fact wrongly decided, the court having failed to consider the effect of the binding decision of the House of Lords in Evans v Bartlam [1937] AC 473. This issue was not argued before me during the hearing but, in refusing to give permission on this ground, I have commented that I do not see how a judgment of the House of Lords handed down in 1937 could not bind the Court of Appeal on the true construction of the code established by the Civil Procedure Rules 1998 (as amended). I have not otherwise revised the draft judgment to address this issue since it was not argued before me.

The Claimant relies on the Defendant’s lack of promptness. He draws attention to the fact that this application has been bedevilled by delay and procedural inefficiency on the Defendant’s part. Even when the judgment was challenged, the Defendant originally did so through the obviously incorrect route of seeking to vary a judgment of the Circuit Commercial Court in the TOLATA claim. What the Defendant is seeking to do is no more than yet another attempt to avoid discharging his undisputed indebtedness to the Claimant.

I accept that the Defendant must meet the test for relief of sanctions. As noted in paragraph 17 of this judgment, following the decision of FXF v English Karate it is now clear that the relief from sanction test set out in Denton v White is applicable to CPR 13.3. I reject the suggestion that I need not follow that judgment on the ground that it was decided per incuriam for reasons already given.

The test in Denton v White is based on the principles of CPR 3.9 and requires the court to take the following three-stage approach:

I see no justification for somehow refining that test in the particular circumstances of the case. It is true that there are some features of applications to set aside default judgements that are different than many other applications for relief from sanction. As noted in the judgment of Dexter Dias KC sitting as a Judge of the High Court in PXC v AB [2022] EWHC 3571, the power to set aside judgment stems from the legitimate policy that judgment given without full determination of the underlying merits of a claim may determine liability in way that causes injustice. This line of thinking can be seen in Lord Millet’s comments in Strachan v The Gleaner. But there is equally a risk of injustice if those who are aware of a default judgment do not act promptly to set them aside. At the level of first principle, it is not obvious that the one factor so outweighs the other as to justify a departure from the general principles to be applied in application relief from sanctions. At the level of authority, it is clear that I am bound by FXF and that judgment contains no basis for thinking that any such refinement to the Denton could or should exist.

There is no clear reason why the application of the Denton tests should be considered on the facts of this case. Instead, the court has consistently reaffirmed that relief of sanctions test apply to CPR 13.3(1) without caveat (see paragraph 39 of Regione Piemonte v. Dexia Crediop SpA [2014] EWCA Civ 129). Indeed, the Master of Rolls observed in FXF v English Karate, at paragraph 66:

This is not to say that the merit of the application to vary the erroneous judgment is irrelevant. It is clear that the third criterion in Denton requires the court to take a broad look at the circumstances which must include that injustice that it is alleged would arise if the judgment is not set aside. For example, where (as is arguably the case here) there is a clear error leading to an excessive judgment, the court may be more willing to grant relief from sanction than it would be if the error were less clear cut.

At the first stage of the Denton test, I am satisfied that the Defendant's default in failing to file a defence is of seriousness and significance. As a consequence of this default, the Defendant was sanctioned and a default judgment was obtained under CPR 12.3(2). Looking to the second stage, the Defendant has provided no reason as to why a defence was not filed. It is suggested on behalf of the Defendant this may be because he realises that does not have an arguable defence to the claim, though it is at least as likely that it is because the Defendant simply refuses to engage with the court process. The Defendant’s failure to put in evidence as to why this error has occurred and why it took so long to make the application points in the direction of there being no explanation that would survive the light of day.

Finally, at the third stage the court must consider all the circumstances of the case to help deal with the application justly. In paragraph 32 of Denton v White, it was emphasised that at this stage the court should consider the need for litigation to be conducted efficiently and proportionate to costs. It was also emphasised that compliance to rules, practice directions and orders should be enforced and encouraged. In looking to all the circumstances of the case to deal justly with the application, the court must also look to the issue of promptness of the Defendant's application discussed under CPR 13.3(2). This was highlighted by Vos LJ (as he then was) at paragraph 24 of his judgment in Gentry v Miller [2016] EWCA Civ 141.

As I have noted above, the Defendant did not act promptly or with urgency to set aside the default judgment. Further, looking to matters of efficient litigation and proportionate costs, it becomes apparent that the Claimant's journey to recover his sum has been expensive and frequently frustrated. Given the time passed between the award of the default judgment on the 23 September 2022 and Defendant's application on the 7 September 2023 amounts to just under a year, it is hard to argue that the Defendant has acted in a way that is proportionate and efficient. Even when the Defendant did get round to making this application, he did so in a manner that was disruptive of these proceedings by issuing the application in the wrong court causing further expense and delay.

Balanced against the inexcusable delay in this case is the potential prejudice to the Defendant through this judgement standing. It is true that there is a fair chance that the judgement obtained by the Claimant will led to the Defendant having to pay more than would have been the case had the judgement been expressed in AED. At the most easily accessible spot rate, the sterling equivalent of the claim in Dirham is in fact about £200,000 less than the judgment sum. However the value to the Claimant of the judgement in these proceedings would always be liable to fluctuation if it were expressed in AED. It is possible that there will be change rate fluctuations that made the sterling sum in the judgment worth less than the AED figure in the Claim Form. In any event, whilst the prospective overstatement of the claim through the judgment figure is not an insignificant figure, it is only about 15% of the total claim.

Despite lengthy proceedings the Claimant has recovered only a small part of the debt. Is he now to have to incur further cost and delay in seeking to recover what he is entitled to? Whilst I set out my reasons for why I consider AED to be the more appropriate judgment currency than sterling, I do not accept that it is unjust to refuse the defendant's application for relief from sanctions given the delay in bringing the application and the inefficiency that would arise from varying the judgement.

Accordingly, if it had been necessary to decide the case on that basis, I would have refused relief from sanction.

On the material before me: