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The DIFC Court of Appeal has handed down judgment in Krystal Financial Consultants LLC v NextGen Robopark Investment LLC [2025] DIFC CA 007, dismissing Krystal’s appeal. Sitting as an expanded five-judge bench, the Court used the appeal to clarify the standard of appellate review in the DIFC Courts more generally.
The appeal arose from Krystal’s claim for a success fee under a debt-raising mandate, pursuant to which it had been engaged to help NextGen refinance AED 155m of existing debt through Dubai Islamic Bank. The key issue was whether an email sent by NextGen amounted to an objection to the bank’s refinancing offer. If it did, no success fee fell due. If it did not, the offer was deemed to have been accepted under the mandate’s terms and a success fee became payable.
At first instance, H.E. Justice Rene Le Miere granted NextGen immediate judgment and dismissed the claim. The Court of Appeal, deciding the construction of the email for itself, agreed that it was an objection and dismissed Krystal’s appeal.
The Court of Appeal held the appropriate standard of appellate review was “more nuanced” than any single, universal “plainly wrong” test. Reviewing its own earlier decisions, including Al Khorafi v Bank Sarasin–Alpin (ME) Ltd [2015] DIFC CA 003, DAS Real Estate v First Abu Dhabi Bank PJSC [2017] DIFC CA 007, Hormodi v Bankmed (SAL) [2019] DIFC CA 006 and Amira C Foods International DMCC v IDBI Bank Ltd [2021] DIFC CA 004, the Court of Appeal explained that the amount of appellate deference that should be given to a first instance judge’s decision should depend on the advantage over the Court of Appeal that the first-instance judge actually enjoyed.
At one end of the spectrum lie cases in which it is “quite clear” that the appeal court is at no disadvantage; there, the appeal court is obliged to substitute its own decision if it concludes the judge was wrong.
At the other end of the spectrum lie appeals from findings of fact based on oral testimony or on voluminous and complex documentary evidence; exercises of discretion, including as to costs; multi-factorial evaluative assessments weighing competing factors in the context of the case as a whole; and case management decisions: [52], [60]. These are situations in which it is “quite clear that appellate restraint and deference to the judge at first instance is entirely appropriate”.
In between those extremes lie cases where the degree of deference afforded to the first instance judge is itself “a matter properly assessed by the Court of Appeal having regard to the particular nature and circumstances of the decision under review and the extent to which the appellate court considers that it is at a disadvantage as compared to the Judge at first instance” – an approach expressed as consistent with observations made by Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642.
The Court of Appeal declined to embark on a fuller comparative law survey, recording only its tentative inclination that the differences between common law jurisdictions in this area “may be more semantic than substantive” (at [62]).
George Hilton acted for the successful Respondent, NextGen Robopark Investment LLC, instructed by Tarek Shrayh of Al Tamimi & Company.