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This dispute arises out of two loan agreements made between the Respondent (“SCB”) as lender and the Appellant (“IGPL”) as borrower. SCB and IGPL entered into the first loan agreement on 4 June 2009 for a USD 130 million Multi-Currency Term Loan Facility (the “2009 Loan”). The 2009 Loan was drawn down by the IGPL and the outstanding principal is USD 57,926,207.47. The 2009 Loan was secured by a share pledge agreement between the same parties (“Share Pledge”). The 2009 Loan is governed by UAE law. The second loan agreement was entered into by SCB and IGPL on 9 May 2010 for a USD 54 million term loan facility (the “2010 Loan”). The outstanding principal on the 2010 Loan is USD 48,499,580.86. The 2010 Loan is secured by an assignment agreement and an account pledge under which IGPL assigned rights to SCB, including the right to receive dividends and receivables. The 2010 Loan is governed by English law.
The present appeal relates to an immediate judgment application by SCB on 18 May 2016 for IGPL’s payment of the outstanding principal of USD 106,425,788.33 and a declaration that SCB was entitled to enforce the Share Pledge to satisfy and collect all amounts determined as outstanding in favour of SCB. SCB did not claim for the interest outstanding in the 2009 and 2010 Loans. At the hearing of SCB’s immediate judgment application, IGPL argued that the quantum of outstanding principal must be reduced as SCB breached the 2009 and 2010 Loans as well as the Share Pledge. IGPL pointed out that it pleaded a defence of set-off against SCB’s claim in its defence.
IGPL appealed against the Deputy Chief Justice’s findings and was denied permission by the Deputy Chief Justice to appeal in his order of 1 October 2017. On 5 February 2018, the Chief Justice granted IGPL permission to appeal against the whole judgment of the Deputy Chief Justice on the basis that there was a compelling reason why the appeal should be heard, namely, the public interest in clarifying the meaning and extent of the doctrine of mandatory and judicial set-off as set out in Articles 369 to 372 of the UAE Civil Code. The Chief Justice also asked the Parties to make comparative law submissions on the law of set-off with the equivalent provisions in the Civil Codes of Egypt, Iraq, Jordan and Syria.
The issues to be addressed on appeal were (1) whether IGPL raised a substantive defence to SCB’s claim; (2) whether judicial set-off was available as a remedy to the 2009 and 2010 Loans; (3) whether the effect of mandatory set-off under Articles 369 and 370 of the UAE Civil Code were mandatory such that the Parties cannot interfere with the automatic operation of set-off; (4) if mandatory set-off was not excluded by the anti set-off clauses, whether IGPL has fulfilled the conditions for mandatory set-off; (5) whether IGPL was required to have a fully quantified set-off at the time of SCB’s immediate judgment application.
Chief Justice Michael Hwang SC (with H.E. Justice Ali Al Madhani and Justice Sir Richard Field) dismissed the appeal. The Court of Appeal found that the Deputy Chief Justice had considered IGPL’s substantive defence at the immediate judgment hearing to SCB’s claim. Under UAE law, there must be an independent claim or counterclaim for judicial set-off to apply. As IGPL failed to file a counterclaim, it should not be granted its application for judicial set-off. The Court of Appeal also held that, under UAE law, mandatory set-off does not override the Parties’ freedom to contract under Articles 257, 259 and 265(1). The anti set-off clauses were therefore effective in excluding mandatory set-off under Articles 369 and 370 of the UAE Civil Code. Finally, the Court of Appeal agreed with the Deputy Chief Justice on IGPL’s lack of quantification in its defence of set-off. Furthermore, despite making numerous assertions in its defence such as its requests for the release of excess shares or SVB’s failure to collect dividends for its pledged shares in time, IGPL had not tendered any witness statements or evidence to support its position. Accordingly, the Court of Appeal was not convinced that there was sufficient evidence to show that IGPL had a real prospect of success in its defence.
1. The Appellant’s appeal is dismissed.
2. The Immediate Judgment of the Deputy Chief Justice Sir David Steel dated 16 August 2017 (re-issued on 5 September 2017) is upheld.
3. The stay of the proceedings granted by the Order of the Chief Justice dated 5 February 2018 is lifted.
4. Costs arising from the appeal shall be paid by the Appellant to the Respondent, within 14 days of the date of this order, the amount of which shall be assessed, if not agreed, by the Registrar.
1. The present appeal arises out of two loan agreements made between the Respondent (“SCB”) as lender and the Appellant (“IGPL”) as borrower. SCB and IGPL are collectively referred to as the “Parties”. Brief details of the two loan agreements are as follows.
1.1. The 2009 Loan: On or about 4 June 2009, SCB and IGPL entered into a USD 130 million Multi-Currency Term Loan Facility (the “2009 Loan”). The Respondent has drawn down the full USD 130 million. According to SCB, the total repayments of the principal sum by IGPL amount to USD 72,073,792.63. The outstanding principal is USD 57,926,207.47.
1.1.1. The 2009 Loan was secured by a share pledge agreement between SCB and IGPL dated 3 June 2009 (the “Share Pledge”) under which IGPL pledged in favour of SCB certain shares and related rights. The shares are described in Schedule No. 1 of the Share Pledge and consist of various shares listed on the Dubai Financial Market and the Abu Dhabi Securities Exchange.
1.1.2. According to SCB, it “periodically recovered amounts payable under or in respect of the Security Assets under the Share Pledge”. Such amounts have been applied to reduce the amount of interest owed by IGPL.
1.1.3. On 6 August 2014, SCB commenced an action in the DIFC Courts claiming return of the loan monies.
1.1.4. IGPL contested the validity of the Share Pledge in the Sharjah Courts. However, the Sharjah Court of Appeal denied jurisdiction over the dispute on 16 May 2016. The Union Supreme Court upheld the same decision as the Sharjah Court of Appeal in separate proceedings commenced by IGPL. According to SCB, there are no pending proceedings concerning the validity of the Share Pledge in the Sharjah Courts, Dubai Courts, DIFC Courts or elsewhere.
1.1.5. The 2009 Loan is governed by UAE law.
1.2. The 2010 Loan: On or about 9 May 2010, SCB and IGPL entered into a USD 54 million term loan facility (the “2010 Loan”). Thereafter, the Respondent drew down the full USD 54 million. The total repayments of the principal sum made to date amount to USD 5,500,419.14, leaving an outstanding principal of USD 48,499,580.86.
1.2.1. The 2010 Loan was secured by an assignment agreement and an account pledge under which IGPL assigned certain rights to SCB, including the right to receive dividends and receivables. These rights are described in the (a) Account Pledge and Assignment Agreement between IGPL (as pledger) and SCB (as security agent and account bank) dated 9 May 2010, and (b) Assignment of Receivables between IGPL and Ruby Living Courts (as assignors) and SCB (as security agent) dated 9 May 2010.
1.2.2. The 2010 Loan is governed by English law.
1.3. The 2009 Loan and the 2010 Loan are collectively referred to as the “2009 and 2010 Loans”. The total amount of principal outstanding under both the 2009 and 2010 Loans is USD 106,425,788.33.
1.4. As this appeal is confined to the Respondent’s application for immediate judgment only on the principal amounts owing under the 2009 and 2010 Loans, I will only consider arguments relevant to the repayment of the aggregate principal amounts of USD 106,425,788.33.
2. The following paragraphs provide the procedural history and background relevant to the current appeal.
3. On 18 May 2016, SCB made an application for immediate judgment to the DIFC Courts of First Instance (“Immediate Judgment Application”). The hearing was fixed on 16 October 2016. The details of SCB’s Immediate Judgment Application were as follows.
3.1. The Immediate Judgment Application was limited to SCB’s claim for the principal amounts outstanding under the 2009 and 2010 Loans (i.e. USD 106,425,788.33), as well as its claim for a declaration that SCB was entitled to enforce the Share Pledge to satisfy and collect all amounts determined as outstanding in favour of SCB.
3.2. SCB’s claims for interest outstanding under the 2009 and 2010 Loans were not included in the Immediate Judgment Application.
4. On 11 October 2016, IGPL made an application pursuant to Article 4 of Decree No. 19 of 2016 for adjudication of an alleged conflict of jurisdiction between the Dubai Courts and DIFC Courts. On 12 February 2017, the Joint Judicial Committee (“JJC”) established under Decree No. 19 of 2016 ruled that the DIFC Courts were the competent court.
5. The hearing for immediate judgment was re-fixed on 6 March 2017 (“Immediate Judgment Hearing”). On 23 February 2017, IGPL applied for leave to serve a counterclaim (“Counterclaim Application”). The counterclaim arose from IGPL’s complaint that SCB had breached certain terms of the Share Pledge as (a) it failed to return and/or realise IGPL’s shares held as security, and (b) failed to collect, on a timely basis, dividends in relation to the pledged shares.
6. On 1 March 2017, SCB filed an answer to IGPL’s Counterclaim Application.
7. At the Immediate Judgment Hearing on 6 March 2017, the learned Deputy Chief Justice Sir David Steel heard the Counterclaim Application and the Immediate Judgment Application. His Honour ordered that IGPL was permitted to file its Counterclaim Application upon fulfilling certain conditions proposed by SCB within seven days. However, IGPL made it clear at the hearing that it would not consent to the undertakings.
8. On 13 March 2017, IGPL applied for permission to appeal against the Deputy Chief Justice’s conditional grant of leave to file its counterclaim. On 2 April 2017, Justice Sir Jeremy Cooke denied IGPL’s appeal application.
9. On 17 April 2017, IGPL filed a challenge with the JJC, contesting the DIFC Courts’ jurisdiction. On 14 August 2017. The JJC rejected IGPL’s challenge.
10. On 16 August 2017, the Deputy Chief Justice issued an order granting SCB’s Immediate Judgment Application.
10.1. SCB was granted immediate judgment in the terms sought in its Immediate Judgment Application.
10.1.1. IGPL was ordered to pay to SCB the amount of USD 106,425,788.33 within 14 days of the issuance of the Judgment of the Deputy Chief Justice.
10.1.2. SCB was entitled to enforce its security under the Share Pledge and was permitted to sell all or any number of pledged shares, as selected by SCB, at market value at the Dubai Financial Market and/or Abu Dhabi Securities Exchange upon the relevant date of actual enforcement of the declaration, in order to satisfy and collect all amounts determined as outstanding in favour of SCB.
10.2.4. An undertaking not to issue further proceedings in relation to the counterclaim in the UAE.
10.3. IGPL was also ordered to pay SCB’s costs to be assessed by the Registrar, if not agreed.
11. IGPL did not fulfil the conditions stated in paragraph 2 above in order to bring a counterclaim. Accordingly, no counterclaim was in fact filed.
13. On 7 September 2017, IGPL filed an application for permission to appeal against the Order of the Deputy Chief Justice. On 1 October 2017, the Deputy Chief Justice denied IGPL permission to appeal.
14. On 22 October 2017, IGPL made a further application for permission to appeal accompanied by its skeleton argument (“Appellant’s Skeleton Argument”).
15. On 12 November 2017, SCB filed its response to IGPL’s appeal notice of 22 October 2017.
16. On 11 January 2018, the Court of Appeal fixed the appeal for hearing on 10 May 2018 (the “Appeal Hearing”).
17. On 18 January 2018, the Court of Appeal asked the Parties to make submissions on the appropriateness of imposing a condition for payment into court as a requirement for the grant of permission to appeal and a stay of execution (“Proposed Conditions for Appeal”).
18. On 22 and 24 January 2018, SCB and IGPL filed their submissions on the Proposed Conditions for Appeal respectively. On 29 January 2018, SCB filed its reply submissions on the Proposed Conditions for Appeal.
19. In my Order dated 5 February 2018, I granted IGPL permission to appeal against the Judgment of the Deputy Chief Justice pursuant to Rule 44.8 of the Rules of the DIFC Courts (“RDC”) on the basis that there was a compelling reason why the appeal should be heard, namely the public interest in clarifying the meaning and extent of the doctrines of mandatory and judicial set-off as set out in Articles 369 to 372 of the Federal Civil Code (No. 5 of 1985) (“UAE Civil Code”). IGPL was granted permission to appeal against the whole of the Order of the Deputy Chief Justice David Steel dated 16 August 2017. IGPL was also granted a stay of proceedings pursuant to RDC 44.4 pending the appeal being granted.
20. On 19 March 2018, SCB filed its skeleton argument for the Appeal Hearing.
21. On 4 April 2018, IGPL filed its supplemental skeleton argument for the Appeal Hearing (“Appellant’s Supplemental Skeleton Argument”).
22. On 18 April 2018, SCB filed its supplemental skeleton argument for the Appeal Hearing (“Respondent’s Supplemental Skeleton Argument”).
23. The relevant provisions of the UAE Civil Code are as follows.
The basic principle in contracts is the consent of the contracting parties and what they have undertaken to do in the contract.
There shall be no room for implications in the face of clear words.
Words should be given effect to rather than ignored, but if it is impossible to give effect to words, they shall be ignored.
If the wording of the contract Is clear, it may not be deviated from by way of interpretation to ascertain the intention of the parties.
Set-off is the satisfaction of an obligation owed to the obligee by an obligation owed by him to the obligee.
Set-off may either be mandatory, occurring by operation of law, or voluntary, occurring by operation of agreement between the parties, or judicial, occurring by order of the court.
In the case of mandatory set-off, each of the parties must be in debt to the other, and the obligations must be of the same kind and description, must be equally due and of equal strength and weakness, and the making of the set-off must not be prejudicial to the rights of third parties, whether the cause of the arising of the obligations is the same or different.
A set-off may be made by agreement if any of the conditions for a mandatory set-off is not satisfied.
24. The relevant provisions of the Egyptian, Iraqi, Jordanian and Syrian Civil Codes are provided in the relevant sections below for ease of reference.
26. As a starting point, the Deputy Chief Justice found that immediate judgment may be granted (pursuant to Part 24 of the RDC) if the Court was satisfied that IGPL had “no real prospect” of successfully defending SCB’s claims for (a) the principal amounts owed under the 2009 and 2010 Loans, and (b) a declaration as to the enforceability of the Share Pledge. Further, His Honour rejected IGPL’s suggestion that there was, in any event, “some other compelling reason for a trial.” His Honour also found that there was no dispute by IGPL that the outstanding loan monies had not been repaid. Following these findings, the Deputy Chief Justice went on to consider the main contentions by the Parties.
26.1. IGPL took the position that the quantum of the loan monies must be reduced via set-off by its cross claims which reflected SCB’s breaches of the 2009 and 2010 Loans and the Share Pledge. According to IGPL, it had pleaded a defence of set-off against the Claimant’s claim in its Defence of 6 April 2016 (“Defence”).
26.2. SCB took the following position.
26.2.1. There was no evidential support for IGPL’s allegations of breach underlying its claim for damages.
26.2.2. Furthermore, IGPL’s claim for damages was not quantified. Expert evidence was required to quantify the claim.
26.2.3. SCB also highlighted that there were anti set-off clauses in the 2009 and 2010 Loans.
26.2.4. Accordingly, SCB argued that the judgment on its claim should not be postponed as any valid cross-claim by IGPL could be conveniently and properly determined in due course.
27. The Deputy Chief Justice examined each loan separately as they had different governing laws. The 2009 Loan was governed by UAE law while the 2010 Loan was governed by English Law.
28. The relevant anti set-off clause in the 2009 Loan is as follows.
“19.3 No set off by the Borrowers.
29. The governing law of the 2009 Loan is UAE law. The Deputy Chief Justice referred to Articles 257, 259 and 265 of the UAE Civil Code and found that the UAE Civil Code allowed contracting parties to consent to such terms as they wished if the words of the contract were clear. The Deputy Chief Justice found that the anti set-off clause in clause 19.3 of the 2009 Loan was “entirely clear and devoid of unambiguity”.
31. Following his decision that the anti set-off clause applied to the 2009 Loan, the Deputy Chief Justice went on to consider if “mandatory” set-off under Article 370 of the UAE Civil Code applied in the event that the anti set-off clause in Article 19.3 did not exclude “mandatory” set-off.
32. The Deputy Chief Justice held that the conditions required for “mandatory” set-off under Article 370 of the UAE Civil Code were not satisfied.
32.2. The obligations were not equally due and of equal strength.
33. Under Article 371, set-off by agreement between the parties can occur if the conditions for mandatory set-off were not satisfied. The Deputy Chief Justice found that there was no such agreement under the 2009 Loan; instead, there was an agreement not to set-off.
34. IGPL argued that, as a matter of construction, the anti set-off clause only barred the set-off for transactions between the Parties and not court proceedings. The anti set-off clause did not prevent the court from allowing a set-off in favour of IGPL.
“23. There are no grounds for judicial setoff: Article 372. Indeed, IGPL appeared to accept that a judicial order would merely be a reflection of the mandatory set off is applicable. In this connection IGPL contended that as a matter of construction the clause only applied to bar set off in regard to transactions between the parties and not in the context of court proceedings. I fear I was unable to follow this proposition which would of course render the clause of no effect in circumstances where a claim was not accepted by the defendant [IGPL] thus defeating the commercial purpose of such a clause.
36. Additionally, the Deputy Chief Justice also followed the finding in Dubai Court of Cassation Case No. 77/2011 (Commercial) dated 21 September 2011 that a right of set-off only arises if the debt is “indisputable, payable and known”. In disagreeing with IGPL’s argument, the Deputy Chief Justice highlighted the fact that an expert was still required to assess the quantum of IGPL’s alleged losses that it claimed.
37. Accordingly, the Deputy Chief Justice found that there was no right of set-off under the 2009 Loan.
38. The relevant anti set-off clause in the 2010 Loan is as follows.
39. The governing law of the 2010 Loan is English law. The Deputy Chief Justice found that, under English law, anti set-off clauses have a legitimate commercial function and are valid and enforceable. Accordingly, His Honour held that clause 29.6 of the 2010 Loan was “clear and unequivocal”. The anti set-off clause was therefore contractually enforceable.
40. The Deputy Chief Justice concluded that there was no right of equitable set-off for the following reasons.
40.1. There was no attempt by IGPL to assess the quantum of IGPL’s counterclaim. His Honour cited Federal Commerce & Navigation Co. Ltd v Molena Alpha Inc  2 QB 927 which found that a reasonable assessment made in good faith would be treated as a precondition to equitable set-off.
40.2. The Deputy Chief Justice considered the history of the claim and found that it would not be “manifestly unjust” to enforce the claim without account of the cross claim: Esso Petroleum Co. Ltd v Milton  WLR 938; Geldof Metaalconstructie NV v Simon Carves Ltd  EWCA Civ 667.
41. The Deputy Chief Justice held that SCB was entitled to immediate judgment on its claim for the outstanding principal and declared that SCB was entitled to enforce the Share Pledge.
42. IGPL filed an appeal notice after the Judgment of the Deputy Chief Justice dated 16 August 2017 was issued.
43. In the Order of the Deputy Chief Justice Sir David Steel dated 1 October 2017 (“Order of 1 October 2017”), the Deputy Chief Justice denied IGPL’s application for permission to appeal and its application for a stay.
44.3. There was no real prospect of success for IGPL’s challenge on mandatory and judicial set-off under UAE law.
45. In coming to his conclusion, the Deputy Chief Justice highlighted his view that there had never been a challenge to the merits and quantum of SCB’s claim on the 2009 and 2010 Loans. The only challenge from IGPL was its counterclaim which “remains wholly unquantified after a number of years”. In fact, the Deputy Chief Justice took the position that IGPL’s counterclaim was never advanced in the DIFC Courts.
47. On 5 February 2018, I granted IGPL leave to appeal against the whole Judgment of Deputy Chief Justice pursuant to RDC 44.8 on the basis that there was a compelling reason why the appeal should be heard, namely, the public interest in clarifying the meaning and extent of the doctrine of mandatory and judicial set-off as set out in Articles 369 to 372 of the UAE Civil Code.
48. Having reviewed the submissions and commentaries submitted by the Parties, I note that the words “mandatory”, “compulsory” and “legal” set-off were used interchangeably, depending on the translation of each relevant provision.
49. As I realised there was limited commentary on set-off in James Whelan’s Commentary of the UAE Civil Code (Sweet & Maxwell, 2011), I asked the Parties to make comparative law submissions on the equivalent provisions in the Civil Codes of selected countries in the Middle East and North Africa on the law of set-off, viz Egypt, Iraq, Jordan and Syria, which also had comparable provisions in their respective Civil Codes relating to set off.
50. RDC 44.117 provides the grounds on which the Court of Appeal will allow an appeal from the Court of First Instance.
51. In the Appellant’s Supplemental Skeleton Argument, IGPL criticises SCB for placing “mistaken reliance” on R(Iran) v Secretary of State for Home Department  EWCA Civ 982 (“R(Iran)”) in defining that “wrong” in RDC 44.117 was restricted only to an error of law.
53. In furtherance of its position on the test for an appeal with regard to errors of law, SCB relies on R(Iran) which held that an error of law needed to be “material”.
54. SCB also relies on two English cases, Aldi Stores Limited v WSP Group Plc & Ors  EWCA Civ 1260 and Stuart Goldberg & Anor  EWCA Civ 2, which were concerned with appeals on decisions to strike out claims. According to SCB, granting a striking out application is a discretionary remedy, and was similar to the granting of immediate judgment. The focus of the test in these two English cases was whether the conclusion of the court was “plainly wrong”. SCB submitted that IGPL had not discharged its burden of demonstrating that the Deputy Chief Justice had erred in such a way to render the Immediate Judgment “wrong” or “plainly wrong”.
55. Having received clarification from both Parties, I do not find that the Parties’ positions are inconsistent. The test for an appeal to be granted examines whether the conclusion of the Deputy Chief Justice was “wrong”, and “wrong” includes applies to both errors of fact and errors of law.
56. In the present appeal, I note that IGPL has argued that there are both errors of fact and law for the Court of Appeal to consider. On the other hand, SCB has contended that IGPL’s grounds of appeal only contain alleged errors of law by the Deputy Chief Justice.
57. The test for immediate judgment is whether IGPL had “no real prospect” of succeeding in defending SCB’s claim. The Court of Appeal must therefore consider whether IGPL had a “realistic”, as opposed to “fanciful” prospect of success: Swain v Hillman  2 All ER 91 and GFH Capital Limited v David Lawrence Haigh CFI-020-2014, 18 October 2016.
58. While the legal burden of proof for immediate judgment rests with it, SCB submits that the evidential burden of proving that IGPL has a real prospect of successfully defending SCB’s claim rests with IGPL.
59. I agree with SCB’s position. The case of Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG  EWCA Civ 1066 (“Korea National Insurance Corporation”) provides some useful guidance as to a party’s evidential burden of proof. In Korea National Insurance Corporation, Lord Justice Moore-Bick opined that, if a party wished to rely on the likelihood that further evidence would be available, it must substantiate the assertion. It is insufficient to simply say that further evidence will or may be available. The relevant excerpt is as follows.
60. IGPL has raised four grounds of appeal in its Appellant’s Skeleton Argument. There is also an additional ground raised among IGPL’s substantive defences which it has not categorised.
61. In this judgment, I will address the following issues.
61.1. Ground 1: Whether the Deputy Chief Justice was wrong in concluding that IGPL did not raise a substantive defence to SCB’s claim. IGPL has contended that its right to set-off was advanced by way of defence in its response to the Immediate Judgment Application and in its defence (“Substantive Defence Ground”).
61.2. Ground 2: Whether the Deputy Chief Justice was wrong in finding that judicial set-off was merely a reflection of mandatory set-off (“Judicial Set-Off Ground”). IGPL has taken the position that judicial set-off was a separate remedy available to the courts. IGPL contends that judicial set-off is available for both the 2009 and 2010 Loans and that it was available even though there is no connection in terms of the subject of the obligations and when one debt is disputed or unquantified.
61.3. Ground 3: Whether the effect of the mandatory set-off under Articles 369 and 370 of the UAE Civil Code is mandatory with the result that parties cannot interfere with the automatic operation of the set-off (“Mandatory Provisions Ground”).
61.4. Ground 4: Whether the Deputy Chief Justice was wrong in concluding that IGPL had failed to establish the conditions required for mandatory set-off under Article 370 of the UAE Civil Code (“Mandatory Set-Off Conditions Ground”).
61.5. Ground 5: Whether the Deputy Chief Justice was wrong in determining that, at the time of the Immediate Judgment Application, IGPL was required to have a fully quantified set-off available (“Quantification Ground”).
62. IGPL has not challenged the Deputy Chief Justice’s finding that the anti set-off clause was valid under English law in the 2010 Loan. However, in  of the Appellant’s Supplemental Skeleton Argument, IGPL has asserted that the following errors were made in the Deputy Chief Justice’s treatment of the 2010 Loan.
62.3. The Deputy Chief Justice was wrong to rely on the present state of the quantification of set-off (i.e. Quantification Ground).
63. IGPL’s main argument under this Substantive Defence Ground stems from its view that the Deputy Chief Justice was wrong in saying that IGPL had never raised a substantive defence to SCB’s claim. IGPL relied on the Deputy Chief Justice’s words in the Order of 1 October 2017 that “there is and never has been any challenge to the merits and quantum of the claim in respect of the two loans”.
64. IGPL argues that it pleaded a defence of set-off against SCB’s claims in its Defence. The relevant paragraphs, amongst other paragraphs, in the Defence are as follows.
“ The details of those breaches and losses incurred which are before the Dubai Courts are particularised in this Defence solely as a defence to the Claimant’s claims; the Defendant is not seeking any positive relief from this Court in relation to these claims which are set out below for that limited, explanatory, defensive purpose.
65. IGPL argued that, in order for set-off to operate under DIFC law and procedure, set-off can be included in a defence and does not need to be filed as a counterclaim. In support of its position, IGPL highlights RDC 17.33 which states as follows.
66. IGPL further contends that the Deputy Chief Justice, in his review of the lengthy procedural history of this appeal, drew “inappropriate” inferences that its defence and counterclaim lacked credibility. IGPL argues that the procedural history of IGPL’s various jurisdictional challenges indicated IGPL’s position that it was not the Parties’ intention to submit their dispute to the DIFC Courts. It did not indicate that IGPL’s defence lacked credibility. The Court of Appeal was therefore invited to consider IGPL’s defence afresh without reference to the Deputy Chief Justice’s inferences on its procedural history.
67. SCB contends that the Deputy Chief Justice had considered IGPL’s defence in  of the Judgment of the Deputy Chief Justice. IGPL is therefore wrong to say that the Deputy Chief Justice did not consider its substantive defence.
68. Maintaining its primary position, SCB emphasises that the anti set-off clauses in the 2009 and 2010 Loans provide the complete answer to IGPL’s only substantive defence. SCB points out that, in his judgment, the Deputy Chief Justice found that it was not necessary to consider the requirement for set-off to be asserted in a standalone claim or counterclaim as he held that the anti set-off clauses were enforceable.
70. Having examined the submissions presented by the Parties, I am satisfied that the Deputy Chief Justice did give due consideration to IGPL’s defence. It is clear in  of the Judgment of the Deputy Chief Justice that he had considered IGPL’s defence of set-off.
71. Leaving aside consideration of how a set-off should be pleaded (i.e. by way of a defence or counterclaim), I find that IGPL’s defence has been adequately addressed by the Deputy Chief Justice in his judgment.
72. On the contrary, the Deputy Chief Justice allowed the defence of set-off to be argued even though the words “set-off” were not expressly used in the defence. This was admitted by IGPL’s counsel, Mr Barratt at the Appeal Hearing.
“CHIEF JUSTICE MICHAEL HWANG: Sorry, Mr Barratt, just leading on from that; coming back to your defence that you have just been taking us through, show me in the defence where you use the word “set-off”.
73. Moreover, the defence of set-off was clearly considered in  to  of the Judgment of the Deputy Chief Justice.
74. IGPL goes on to argue, in its Skeleton Argument, that there were a number of other challenges to the quantification of the loans. In particular, IGPL highlighted , , , and  of its Defence.
“13. It is admitted that clause 2 of the BAL General Terms and Conditions provides that ‘overdue outstandings’ will be charged interest at a minimum of 5% per cent per annum. Otherwise, paragraph 17 is denied. On 4 January 2012, when asked by Aji George on behalf of the Defendant which interest rate was being charge, S. Shymata on behalf of the Claimant, provided interest figures consistent with the usual rate of interest pursuant to clauses 5 and 6 of the General Terms. In the premises, the Defendant relied on this representation to its detriment and the Claimant is estopped from denying that representation and it is not entitled to recover default interest.
34. Paragraph 29 of the Particulars of Claim is denied. The Defendant repeats paragraph 13 of this Defence. The Claimant is estopped from relying on the terms of the 2009 Loan to claim default interest. The Claimant is further prohibited from charging compound interest under UAE law.
(1) The 2009 Loan is governed by UAE law: General Terms (for Multi Currency/ Multiple Borrower Term Loan Facility, Paragraph 26.
(2) Compound interest is prohibited under UAE law according to the judgment of the Federal Supreme Court in Petition No. 176/2008 issued on 15 June 2009.
75. As these challenges related to the interest component of the 2009 and 2010 Loans, the Deputy Chief Justice was correct in excluding them from his decision of the Immediate Judgment Application.
76. Further, it was not wrong for the Deputy Chief Justice to set out the procedural history of the case. In fact, setting out the procedural history is helpful in explaining the context of an appeal. Even though the Deputy Chief Justice commented that the procedural history was lengthy and that “the defence and counterclaim lacked credibility”, it does not mean that any adverse inference was made just because the Deputy Chief Justice used the word “inference” in his judgment.
77. Accordingly, I disagree with IGPL that the Deputy Chief Justice failed to consider its substantive defence at the Immediate Judgment Hearing.
79. At  of his judgment, the Deputy Chief Justice held that there were no grounds for judicial set-off under Article 372 of the UAE Civil Code. The Deputy Chief Justice disagreed with IGPL’s position that the anti set-off clauses in the 2009 and 2010 Loans prevented parties from setting off sums owed in court proceedings, and only applied to prevent any set-off during the course of transactions between the Parties.
80. In coming to his conclusion that the anti set-off clause excluded judicial set-off, the Deputy Chief Justice reasoned that a finding in favour of IGPL’s position would “render the clause of no effect… defeating the commercial purposes” of the anti set-off clause.
82.3. It was unnecessary for either obligation to be quantified.
83. In the Appellant’s Skeleton Argument, IGPL maintains its position that a plain reading of the anti set-off clauses in the 2009 and 2010 Loans only governed payments from IGPL to SCB “during the course of performance of the loans”. This means that IGPL could not unilaterally deduct amounts owed to it by SCB when calculating instalment payments under the 2009 and 2010 Loans. The anti set-off clauses did not prevent IGPL from filing an application for set-off in court proceedings.
84. SCB maintains its position that the anti set-off clauses in the 2009 and 2010 Loans exclude all forms of set-off, including judicial set-off. SCB therefore submits that the anti set-off clauses are the complete answer to any alleged set-off.
85. SCB also agrees with the Deputy Chief Justice’s finding that the anti set-off clauses would be rendered useless commercially if it was not allowed to be applied.
86.1. Judicial set-off has to be requested by way of ordinary case or by interlocutory demand: Dubai Court of Cassation, Petition No. 80/2010. There must be a standalone claim or counterclaim to assert set-off: Dubai Court of Cassation, Case No. 129/2009.
86.1.1. In support of its position, SCB highlights that the alleged breaches by SCB of the 2009 and 2010 Loans were set out in IGPL’s Defence and did not constitute a primary claim nor a separate counterclaim.
86.1.2. IGPL was granted conditional permission to file a counterclaim by the Deputy Chief Justice but it failed to comply with the conditions imposed.
86.1.3. In response to IGPL’s argument that RDC 17.33 (instead of UAE Civil Code) applies, with the result that no counterclaim needed to be filed, SCB submits that IGPL has wrongly construed the lex fori / lex causae SCB argues that the requirement of a standalone claim or counterclaim is not simply a question of procedure but rather a substantive requirement before the right of set-off arises. The entire availability of set-off therefore falls to be determined by the lex causae, being the law that the Parties have expressly chosen to govern any dispute that may arise from their disagreement. SCB relies on Dicey, Morris and Collins on the Conflict of Laws (15th ed, Sweet and Maxwell, 2012) (“Dicey, Morris and Collins”) which explains that the primary object of using lex fori to determine matters of procedure is to prevent inconvenience. However, if a foreign rule can be applied without causing any inconvenience, the rule should be “classified as procedural”.
86.2. The conditions for judicial set-off are that the obligations must be “indisputable, payable and known”:  of the Judgment of the Deputy Chief Justice which relied on the Dubai Court of Cassation Case No. 77/2011 (Commercial) dated 21 September 2011.
86.2.1. SCB submits that IGPL has been unable to quantify the amount sought to be set-off and/or the basis of any such amount.
86.2.2. SCB further argues that IGPL’s “unparticularised and unquantified potential damages claim” was “no more than a blatant attempt to frustrate” SCB’s attempt to seek immediate judgment of its particularised debt claim. More than two years have passed since the time SCB applied for immediate judgment. There has been “more than adequate time” for IGPL to produce a “fully substantiated and quantified” counterclaim and/or Defence.
86.2.3. Referring to its submission that the evidential burden rests with IGPL to prove that it has a real prospect of successfully defending SCB’s claim (see paragraph 58 above), SCB highlights that IGPL failed to put forward any witness or expert evidence on SCB’s alleged breaches such as, (a) requests for release of alleged surplus shares, (b) SCB’s responses to such requests, (c) SCB’s alleged failure to collect and apply dividends either at all or in a timely manner, (d) SCB’s alleged misapplication of credit card receivables, and/or (e) the alleged quantitative effect of any of these breaches.
87.1. First, whether IGPL was required to file “an original or interlocutory application” for judicial set-off to take place. If so, did IGPL do so?
87.2. Second, what are the conditions of judicial set-off and were these conditions fulfilled?
88. The crux of this issue is to whether IGPL’s application for judicial set-off should follow the procedure of the DIFC Rules of Court pursuant to RDC 17.33 or the procedure required under Article 372 of the UAE Civil Code.
89. It is clear from the two Dubai cases discussed at the Appeal Hearing, (Dubai Court of Cassation, Petition No. 80/2010 and Dubai Court of Cassation, Case No. 129/2009) that, under UAE law, there has to be an “original” (i.e. independent) claim or counterclaim for judicial set-off to apply.
90. On the other hand, RDC 17.33 allows set-off to be included in a defence, whether or not it is also a counterclaim.
92. Dicey, Morris and Collins explains the difficulties and approaches in discriminating between rules of procedure and rules of substance at [7-004].
93. I shall now proceed to review the requirements in other jurisdictions for a better understanding of whether the requirement to file a standalone claim or counterclaim should be considered a substantive or procedural one.
94. Under Egyptian law, the procedure of requesting for judicial set-off is not expressly stated in Article 125 of the Egyptian Civil and Commercial Procedures Law.
95. However, the Egyptian Court of Cassation in Case 688/JY 50 has confirmed that set-off is conditional on the filing of a standalone claim or an interlocutory application.
96. The requirements for judicial set-off under the Jordanian Civil Code are similar to the UAE Civil Code.
97. Having considered the comparative law submissions by the Parties, I find that the requirement of an independent claim or counterclaim under Article 372 of the UAE Civil Code on judicial set-off is not merely procedural. It is a substantive requirement to be fulfilled before permission can be given to an applicant for judicial set-off to occur. Similar to the Jordanian Civil Code, the requirement for “an original or an interlocutory application” is integrated as part of the substantive right of judicial set-off in the provision itself. This is different from DIFC law where the requirements of the procedure are annexed under RDC 17.33.
98. Furthermore, filing a counterclaim was not difficult for IGPL. In fact, it made an application for a counterclaim and was in turn granted conditional permission. Applying the principle elaborated in Dicey, Morris and Collins, this demonstrates that following the UAE procedure did not cause any “inconvenience” to the DIFC Courts. It was IGPL’s own wrongdoing for failing to fulfil the conditions stipulated by the Deputy Chief Justice.
99. Accordingly, IGPL was required to file a counterclaim in its application for judicial set-off. Having been given the opportunity by the Deputy Chief Justice, IGPL failed to follow through with its counterclaim and therefore should be not granted its application for judicial set-off.
100. Even though IGPL’s application for judicial set-off fails, I will proceed to discuss the conditions for judicial set-off to be granted for the sake of completeness.
101. I agree with IGPL’s argument that the conditions of judicial and mandatory set-off under the UAE Civil Code are different. In this regard, SCB was wrong to say that the obligations under judicial set-off must be “indisputable, payable and known” for judicial set-off to proceed.
102. A review of the judgment on which SCB has relied makes it clear that the judgment in the Dubai Court of Cassation Case No. 77/2011 (Commercial) dated 21 September 2011 was considering the conditions in a mandatory (or legal) set-off, and not judicial set-off. The relevant extract is as follows.
103. SCB is therefore not correct in relying on this judgment to say that the obligations under judicial set-off must be “indisputable, payable and known”.
104. Further guidance on judicial set-off can be found in the comparative law analysis prepared by the Parties. According to IGPL’s counsel, Mr Ali Al Aidarous, the Egyptian Civil Code is the most influential of the civil codes in the Arab countries. Mr Ali Al Aidarous also referred to the commentary by Abdulrazzaq Alsanhouri in Al Waseet Explaining the New Civil Code (3) General Theory of Obligation – Descriptions, Assignment and Abatement, New Third Edition (“Alsanhouri’s Commentary on Egyptian Law”).
105. In Alsanhouri’s Commentary on Egyptian Law, Alsahouri explained that the court has discretionary authority in an application for judicial set-off. A judicial set-off may exist when two conditions of legal set-off are not fulfilled: (1) absence of dispute and (2) pre-determination of value of the claim. This means that the court can order judicial set-off even if there is a dispute regarding the existence or quantum of corresponding claims. The relevant excerpt from the translated commentary is as follows.
106. The Parties’ submissions on the other jurisdictions are not as helpful as the submissions on Egyptian law. Nonetheless, for the sake of completeness, I will present them in this judgment.
107. IGPL submits that, under Iraqi law, the court has no power to grant judicial set-off. Where a court is required to grant a set-off, it does so on the same conditions as mandatory set-off. This gives effect to a mandatory set-off instead of calling the form of set-off a “judicial set-off”.
108. According to SCB, there are no express statutory conditions for judicial set-off under Jordanian law. In practice, however, the Jordanian courts seek to ensure that there is a clear nexus between both claims and that both debts are due before judicial set-off may be ordered.
109. As regards Syrian law, it distinguishes between legal set-off and judicial set-off based on principles derived from legal doctrines, judgments and commentaries rather than statute. There is no authority provided on this point, save for SCB’s mention in  of the Respondent’s Supplemental Skeleton Argument that Mr Roy Georgiades, an expert in Syrian law, confirmed that he agreed with its submissions as to the law of set-off in Syria.
110.1. Both debts must be reciprocal such that both parties are simultaneously debtor and creditor of another.
110.2. Both debts must concern the same subject matter – such as, for example the payment of money.
110.3. Both debts must have reached maturity so that they are both due in time to each party from one another respectively.
111. Under Syrian law, judicial set-off can therefore be brought about where debts are disputed and have not been quantified.
112. Despite the comparative law submissions provided by the Parties on judicial set-off, I find that, save for the fact that the court has a wide discretion in granting judicial set-off, there is little guidance as to how a court can decide on allowing a judicial set-off once the conditions of legal set-off are not fulfilled.
113.1. The two parties should be a creditor and debtor to each other only.
113.2. There is no requirement for a connection in terms of subject or reason between the two debts.
113.3. Any of the debts may be disputed.
113.4. Any of the debts may have a “non-determined value” as long as it is payable.
114. However, since IGPL did not meet the initial requirement of filing an independent claim or counterclaim, this Court does not need to consider the conditions for judicial set-off.
115. As mentioned in paragraph 80 above, the Deputy Chief Justice found that the anti set-off clauses were contractually enforceable. In coming to his conclusion, the Deputy Chief Justice relied on the following provisions in the UAE Civil Code which allow contracting parties to contract out of setting-off in an agreement.
The basic principle in contracts is the consent of the contracting parties and that which they have undertaken to do in the contract.
There shall be no scope for implications in the face of clear words.
Accordingly, the Deputy Chief Justice found that the anti set-off clause in the 2009 Loan (which was governed by UAE law) was “entirely clear and devoid of ambiguity” and that it prevented the application of mandatory set-off under the UAE Civil Code.
Articles 369 and 370 of the UAE Civil Code on mandatory set-off provide as follows.
118. While IGPL acknowledges that there is a “general freedom of contract”, it argues that Articles 257, 259 and 265 of the UAE Code do not allow parties to override the mandatory legal provisions of mandatory set-off.
119. According to IGPL, mandatory set-off occurs regardless of the will of the parties once the relevant conditions are met. This therefore prevents parties from interfering with the automatic operation of the provision. While there is a provision under the UAE Civil Code (i.e. Article 369) which expressly allows parties to effect voluntary set-off, there is no provision which expressly permits parties to prevent mandatory set-off from happening.
120. SCB argues that IGPL has not provided any authority to show the mandatory effect of Articles 369 and 370 other than pointing to the words “mandatory” in the provisions.
121. SCB points out that the Arabic text of the UAE Civil Code suggests that set-off under Articles 369 and 370 is not compulsory or incapable of variation by party agreement. Instead, the provisions indicate that set-off will occur “involuntarily” when the conditions under Article 370 are satisfied.
122. In support of its submission that Articles 369 and 370 can be contracted out of, SCB makes the following arguments.
122.1. First, under UAE law, parties are free to contract out of provisions of the law unless the provisions relate to a matter of public order. SCB submits that the issue of set-off under a contract between two sophisticated commercial entities is not an issue of public order.
122.2. Second, Article 371 allows parties to agree to a set-off even if the conditions under mandatory set-off in Article 370 are not met. This therefore indicates that set-off is capable of variation by party agreement. In the present appeal, the anti set-off clause in the 2009 Loan shows that the parties have expressly agreed to exclude any form of set-off.
122.3. Third, there is no provision under the UAE Civil Code preventing parties from waiving their right to set-off.
123. The starting point for consideration of this issue is the meaning of the word “mandatory” under Article 369. At the Appeal Hearing, the Parties agreed that the word “mandatory” means “applies by operation of law automatically”. The Parties further agree that, in the event of a dispute, mandatory set-off can occur if invoked by a party.
CHIEF JUSTICE MICHAEL HWANG: Just before Mr Abbott starts, let us just be clear on the position of the appellant. We are trying to just clarify what is the appellant’s position on the meaning of the word, which is translated by Whelan as “mandatory”. I know what Clifford Chance’s version is, and correct me if I am wrong, Mr Abbott, but I think Clifford Chance says that it means that what is translated by Whelan as “mandatory” would better be translated as “involuntary”, which to me is no help, but meaning that it applies by operation of law without parties having to do anything. Have I got it correct?
MR ABBOTT: Yes, that is correct.
CHIEF JUSTICE MICHAEL HWANG: So, do the appellant’s agree with that expanded definition of the term or do you want to stick to “mandatory” and do you want to qualify the term “mandatory” in any way?
CHIEF JUSTICE MICHAEL HWANG: Because I did not see it in your arguments.
CHIEF JUSTICE MICHAEL HWANG: I think that is also in Clifford Chance’s definition, right, automatically?
MR BARRATT: We differ in one respect in that we say it has to be – I can take you to the authority on this – invoked by the party.
124. The next consideration is whether there are any express provisions prohibiting a waiver of the right to set-off.
125. It is clear that there are no express provisions in the UAE Civil Code prohibiting such a waiver. This is different from the position in the Egyptian Civil Code where exclusion of the right to set-off can only take place after the right to set-off has been established. Article 365 of the Egyptian Civil Code states as follows.
126. The position under Syrian law is similar to Egyptian law as the Syrian Civil Code only permits parties to agree to exclude the right of set-off after the right of set-off has come into existence. Article 363(1) of the Syrian Civil Code states as follows.
127. SCB has referred the Court of Appeal to Alsanhouri’s Commentary on Egyptian Law which explains the reason behind the position taken in Egyptian Law. The Egyptian legislator’s decision to restrict waiver before the right arises was meant to address situations where there was an imbalance of bargaining power, such as between a bank and an individual customer who contracted on the bank’s standard terms. The footnote in Alsanhouri’s Commentary on Egyptian Law explains this in the following terms.
128. The UAE Civil Code is silent on the restriction of waiver before the right of set-off arises. SCB suggests that this was a deliberate intention by the UAE legislators to depart from the Egyptian and Syrian position. Owing to the lack of evidence on the intention of the UAE legislators, I am not in a position to speculate on their intention in this regard. Simply because the UAE Civil Code is silent on the waiver of set-off does not mean it prohibits such a waiver.
131. It is clear that anti set-off clauses are not contrary to public order. This position is also reflected in the Egyptian Civil Code as stated by Al Alsanhouri’s Commentary on Egyptian Law. I am also not convinced by Mr Barratt’s explanation of the existence of the category where such clauses are ineffective. Despite asserting this position, IGPL has failed to substantiate this point with any legal authorities in its pleadings.
132. Accordingly, I find that, while the word “mandatory” means “automatically by operation of law”, exclusion by party agreement of mandatory set-off is not contrary to public order. In the absence of any express provision prohibiting a waiver of a right to set-off under UAE law, mandatory set-off does not override the Parties’ freedom to contract under Articles 257, 259 and 265(1). The anti set-off clauses are therefore effective in preventing mandatory set-off from occurring.
133. In  of his judgment, the Deputy Chief Justice held that, even on the assumption that mandatory set-off cannot be excluded by party agreement, IGPL had not established the conditions required for mandatory set-off pursuant to Article 370 of the UAE Civil Code.
134. Article 370 provides as follows.
135. The Deputy Chief Justice’s reasons for his finding were as follows.
135.1. The obligations were not of the same type and description: SCB had an undisputed debt claim while IGPL had a disputed and unparticularised debt claim.
135.2. The obligations were not equally due and were not of equal strength.
136. IGPL disagrees with the Deputy Chief Justice’s conclusion and bases its arguments on two main points.
137. First, IGPL takes the position that the obligations are of the same type and description.
137.1. The obligations by both parties are contractual obligations based on the same transaction. IGPL reasons that IGPL was obligated to pay money while SCB is obligated to return shares.
137.2. IGPL disagrees with the Deputy Chief Justice’s description that SCB’s claim is “an undisputed debt claim” while IGPL’s claim is a “disputed damages claim”. According to IGPL, SCB’s debt is due to its own failure to return IGPL’s shares. This shows that the obligations were not only of the same type, but were intertwined. IGPL therefore needed “full opportunity to defend its position” as this issue could not be dealt with in a summary proceeding.
138. Second, IGPL argues that the obligations are equally due and of equal strength.
138.1. IGPL argues that its obligation to repay the principal and SCB’s obligation to return the shares were due in the past. Both debts are therefore due now.
138.2. As regards the strength of the claims, IGPL argues that the set-offs pleaded in its Defence ought to be taken into account. In support of its contention, IGPL reiterates that, under RDC 17.33, the court is required to consider set-off claims which are brought by way of defence. This is a matter of procedure, and not substantive law.
139. SCB maintains its primary position that the anti set-off clauses are the complete answer to IGPL’s set-off claims. In the alternative, SCB argues that the conditions required for mandatory set-off have not been satisfied.
140. First, SCB takes the position that the obligations are not of the same type and description.
140.1. SCB’s debt claim arises from the 2009 and 2010 Loans which IGPL admits had not been paid. On the other hand, IGPL’s claim is in the form of damages for alleged breaches of the 2009 and 2010 Loans.
140.2. Furthermore, SCB’s debt claim is a claim for a specific sum due while IGPL’s claim is for a release of pledged shares under the Share Pledge, the collection of dividends in a timely manner and the application of receivables in a certain way. One is a straightforward claim for repayment of an agreed monetary sum while the other may include non-monetary compensation in the form of the return of shares.
141. Second, SCB argues that the obligations are not equally due and of equal strength and weakness. IGPL’s claim “continues to be entirely unparticularised” while SCB’s claim is fully quantified, immediately due and payable.
142. As mentioned in paragraph 132 above, I agree with the Deputy Chief Justice that the anti set-off clauses are the complete answer to IGPL’s argument that mandatory set-off should take effect. I therefore do not find it necessary to launch into a full discussion of the conditions of mandatory set-off under UAE law.
143. Nonetheless, I will briefly discuss my views in the event that mandatory set-off is effective.
144. Even without referring to the comparative law analysis by the Parties, case law in the Dubai Court of Cassation provides sufficient commentary on the requirements under mandatory set-off.
144.1. In Dubai Case No. 77/2011 Commercial Appeal by Cassation, the court held that for legal set-off (as translated) (i.e. mandatory set-off) to occur, the debt needs to be “indisputable, payable and known.” The Court found that legal set-off could not occur because there was a dispute by the appellant as to the debt and the respondent’s entitlement of the claimed amount. In particular, the Court mentioned that the need to appoint an expert to estimate the defects claimed meant that the conditions for making legal set-off were absent.
144.2. In Dubai Court of Cassation on appeal no. 129/2009 (Labor), the court compared legal set-off (as translated) (i.e. mandatory set-off) and judicial set-off. While it was not expressly stated that legal set-off needed to be quantified, this conclusion could be inferred from the judgment as follows.
145. It is clear that the requirements for mandatory legal set-off under the UAE Civil Code were not satisfied. The Parties’ obligations were not of the same type and description as IGPL’s claim was not “indisputable, payable and known.” IGPL has continually asserted that it requires an expert to quantify its counterclaims. Furthermore, even if SCB’s claim and IGPL’s counterclaim are already due, it is not possible to ascertain the strength of IGPL’s counterclaim at this point.
146. In the circumstances, even if mandatory set-off could take place, the conditions for mandatory set-off are not fulfilled.
148. IGPL contends that the Deputy Chief Justice failed to take into account that the question of set-off was considered on an application for immediate judgment and not finally determined at trial. The question before the Deputy Chief Justice was whether, should the claim proceed to trial, SCB could show that IGPL had no real prospect of successfully defending the claim.
149. The question now before the Court of Appeal ought to be whether IGPL, with the expert evidence of quantification that would have been reasonably available at trial, had a reasonable prospect of succeeding in its defence of set-off.
150. In support of its position, IGPL highlights RDC 24.2(2) which states as follows.
151. IGPL submits that the court should refrain from conducting a “mini-trial” and had to take into account the evidence that could reasonably be expected at trial: GFH Capital Limited v David Lawrence Haigh, CFI-020-2014, 18 October 2016 citing JSC CTB Bank v Skurikhin  EWHC 271 which summarised the principles in an application for immediate judgment.
152. IGPL further argues that, if the Deputy Chief Justice were correct that a defendant had to have a fully quantified set-off claim at the time of application for immediate judgment, any claim advancing equitable set-off as a defence would be liable to adverse immediate judgment, despite the claim having a real prospect of success once full evidence is available.
153. As regards IGPL’s argument that a defence of equitable set-off would be liable to an adverse immediate judgment, SCB asserts that principles of equitable set-off are irrelevant to the consideration of set-off under UAE law.
154. SCB points out that it has been more than 19 months since the Immediate Judgment Application was filed, and over 3.5 years since the proceedings were commenced. However, up to this point, IGPL has failed to put forward any witness or expert evidence on SCB’s alleged breaches to form the basis of its claim for set-off. For instance, requests for release of alleged surplus shares and SCB’s responses, SCB’s alleged failure to collect and apply dividends either at all or in a timely manner and the alleged misapplication of credit card receivables and/or the alleged quantitative effect of any of these breaches.
155. To further delay the determination of SCB’s entitlement would be inconsistent with the DIFC Courts’s overriding objective to deal with cases expeditiously and fairly under RDC 1.6(4).
156. In my opinion, IGPL’s ground on quantification is sound to the extent that a court should, in an application for immediate judgment, take into account expert evidence which would reasonably be expected to be available at trial.
157. However, I agree with SCB that IGPL has not put forward any witness statements or expert evidence in support of its defence or counterclaim. Even though the legal burden is on SCB to prove that immediate judgment rested with it, IGPL still has the evidential burden to show that it has a “real prospect of success” in defending SCB’s claim.
“18. For the reasons I have already given, I do not think that that is a satisfactory approach to an application of this kind. It is the reinsurers’ case that the claim was compromised at the meeting of 23rd December and it was therefore incumbent on them to put before the court such evidence of the background to and course of the meeting as would, if standing alone, demonstrate that the case had a real prospect of success. On the face of it that could easily have been done because Mr. Payton and another partner of Clyde & Co. Mr. Lewis, had been present at the meeting…and had been closely involved in the events which had preceded it. It was not necessary to put forward compelling evidence, simply enough evidence to raise a real prospect of being able to persuade the court that in the circumstances the words spoken at the meeting were intended to give rise to a binding agreement. As it is, they have chosen to stand on the defence and counterclaim on the grounds that it contains all that is necessary for their purpose.
160.1. IGPL was given an opportunity to quantify its counterclaim in its application for counterclaim. However, IGPL failed to fulfil the conditions stated by the Deputy Chief Justice when he gave IGPL conditional permission to file its counterclaim. As a result, the draft counterclaim could not be filed.
160.2. IGPL has had numerous opportunities to engage a quantum expert since the commencement of proceedings in 2014 when SCB’s claim form was issued on 6 August 2014.
160.2.1. On 12 January 2015, IGPL commenced proceedings against SCB in the Sharjah Civil Court with the contention that the Share Pledge was invalid as it was executed without authority.
160.2.2. IGPL later issued a claim against SCB in the Centre for Amicable Settlement of Disputes in the Dubai Court for a claim in respect of AED 200 million for alleged loss and damage by way of set-off against any debt owed.
160.2.3. On 6 March 2018, the Deputy Chief Justice ordered that IGPL’s counterclaim would be entertained only on the basis of certain undertakings.
161. At the Appeal Hearing, IGPL pointed out that it had previously given a rough quantum of the market value of shares held by IGPL in  of its Defence which states as follows.
162. In my view, if IGPL had been able to give an estimate of the market value of the shares held by it at the time of drafting its Defence, it would have been able to give an estimated quantum of its counterclaim, especially if the market value of the shares were obtainable from public records. However, IGPL failed to do so even up to the point when IGPL sought to file its counterclaim on 23 February 2017. Additionally, IGPL made numerous assertions in its Defence such as its requests for the release of excess shares or SCB’s failure to collect dividends for the pledged shares in time. However, no witness statements or evidence were tendered to support this position. I am therefore not convinced that there was sufficient evidence to show that IGPL had (or has) a real prospect of success in its Defence.
163.3. The Deputy Chief Justice was wrong to rely on the present state of the quantification of set-off (i.e. Quantification Ground).
164. SCB maintains its argument that there was no basis for the application of any law other than English law in the determination of the amounts owed under the 2010 Loan and/or any right of set-off.
166. SCB further denies that the law of judicial set-off is relevant to the 2010 Loan.
167. SCB repeats its argument that the anti set-off clause in the 2010 Loan is contractually enforceable as it is “clear and unequivocal”. In support of its contention, SCB relies on several English cases for the holding that, where an anti set-off clause is “sufficiently clear”, the anti set-off clause should be enforced, in accordance with its terms: Caterpillar (NI) Ltd v John Holt & Company (Liverpool) Ltd  EWCA Civ 1232; Skipskredittforeningen v Emperor Navigation  C.L.C. 1151; FG Wilson (Engineering) Limited v John Holt & Company (Liverpool) Limited  EWHC 2477 (Comm).
168. Furthermore, no legal set-off can occur when the debt is for an unliquidated sum: Aectra Refining & Marketing Inc v Exmar NV  1 WLR 1634.
169. As regards equitable set-off under English law, SCB argues that such set-off can be varied by contract and only exists where a claim and cross-claim are so closely connected such that it would be “manifestly unjust” to enforce one and not take account of the other: Geoldof Metaalconstructie NV v Simon Carves Ltd  EWCA Civ 667.
170. I note that there were no submissions made by IGPL on English law in IGPL’s written submission and at the Appeal Hearing. It is therefore clear that IGPL does not dispute the Deputy Chief Justice’s findings on English law. The only submissions made on the 2010 Loan relate to UAE law (i.e. Substantive Defence Ground, Judicial Set-off Ground and Quantitative Ground). I shall briefly reiterate my findings on the grounds of appeal below.
171. As explained in paragraphs 70 to 77 above, I disagree with IGPL that the Deputy Chief Justice failed to consider its substantive defence at the Immediate Judgment Hearing.
172. As regards IGPL’s argument on judicial set-off, I have explained in paragraphs 88 to 114 above that this Court will not be able to consider its application for judicial set-off as IGPL did not meet the requirement of filing a standalone claim or counterclaim.
173. Finally, the Deputy Chief Justice was correct in relying on the present lack of quantification of IGPL’s counterclaim to determine if IGPL had a real prospect of success.
174. For the reasons set out above, I would dismiss IGPL’s appeal as IGPL has no reasonable prospect of succeeding on any of its proposed defences at the trial, if the matter were allowed to proceed to a full hearing. The Immediate Judgment of the Deputy Chief Justice Sir David Steel dated 16 August 2017 (re-issued on 5 September 2017) is therefore upheld.
175. The stay of the proceedings granted in the Order of the Chief Justice dated 5 February 2018 is lifted.
176. Costs arising from this appeal shall be paid by IGPL to SCB, the amount of which shall be assessed, if not agreed, by the Registrar. Payment shall be made within 14 days of the date of this judgment or, if an assessment by the Registrar is required, then within 14 days of the date of the Registrar’s assessment.
177. I agree with the judgment and have nothing further to add.
178. I agree with the judgment and have nothing further to add.

matches: EWCA EWCA EWCA EWCA EWCA EWCA EWCA


*1 IN RE JULEIGH JEANS SPORTSWEAR, INC.
Kam Louie, Attorney for applicant.
Since the amendment to the Supplemental Register serves to obviate the final refusal to register upon the Principal Register, proceedings in the appeal are suspended and the file of this case is remanded to the Trademark Attorney for consideration of the question of the registrability upon the Supplemental Register of the phrase which is the subject matter of this application. .... If the Trademark Attorney ultimately issues a final refusal to register upon the Supplemental Register, the "6-month response" clause usually appearing in the letter in which such action is taken should be deleted; the file of this case should be returned to the Board; action on the appeal will be resumed; and applicant will be allowed sufficient time in which to file a supplement to its appeal brief.
Applicant's amendment to the Supplemental Register is acknowledged. The Office Action of November 11, 1990 withdrew the Section 2(e)(2) refusal because applicant had disclaimed the word LONDON in a previous amendment. The only refusal made final in that Office Action was the Section 2(a) refusal. While the Examining Attorney has no objection to applicant's amendment to the Supplemental Register, such an amendment has no bearing on the Section 2(a) refusal. The only issue on appeal therefore is whether the mark is deceptive as applied to the goods in the application. The applicant's arguments that the term LONDON is not deceptive is [sic] not persuasive and the final refusal to register under Section 2(a) is maintained.
*2 For these reasons, the refusal to register under Section 2(a) because the applicant's mark LONDON LONDON is geographically deceptive is repeated. This file is being returned to the Trademark Trial and Appeal Board for resumptions [sic] of the appeal.
Nevertheless, while the above practice was not followed, it is clear that applicant has no objection to the Examining Attorney's introducing additional evidence provided that the further evidence offered by applicant is also considered. [FN9] The application is accordingly deemed to have been remanded for inclusion of the supplemental evidence furnished by both the Examining Attorney and the applicant. We hasten to point out, however, that even if such evidence were to be excluded, it would make no difference in the result in this appeal.
A mark may be established as a geographically deceptive mark under § 2(a) by showing that it is primarily geographically deceptively misdescriptive under § 2(e)(2), and additionally showing that the geographic misrepresentation is material to the decision to purchase the goods so marked. See In re House of Windsor, Inc., 221 USPQ 53, 56-57 (TTAB 1983); cf. In re Budge Manufacturing Co. Inc., 857 F.2d 773, 775, 8 USPQ2d 1259, 1260 (Fed.Cir.1988) (whether the misdescription is likely to affect the decision to purchase).
Whether a mark is primarily geographically deceptively misdescriptive under § 2(e)(2) requires an analysis under a two prong test to establish (1) whether the primary significance of the mark as it is used is a generally known geographic place; and (2) whether the public would make a "goods/place association, i.e., believe that the goods for which the mark is sought to be registered originate in that place." In re Societe Generale Des Eaux Minerales de Vittel, S.A., 824 F.2d 957, 959, 3 USPQ2d 1450, 1452 (Fed.Cir.1987); In re Loew's Theatres, Inc., 769 F.2d 764, 767, 226 USPQ 865, 867 (Fed.Cir.1985); In re Nantucket, Inc., 677 F.2d 95, 98-99, 213 USPQ 889, 892-93 (CCPA 1982). In addition, the word "primarily" in § 2(e)(2) should not be overlooked, for it is not the intent of the federal statute to refuse registration of a mark where the geographic meaning is minor, obscure, remote, or not likely to be connected with the goods. Nantucket, 677 F.2d at 99, 213 USPQ at 893.
Id. Thus, provided that all of the above tests are satisfied and that the goods, in fact, do not originate from or otherwise have a significant connection with the geographical location named in or by the mark, a refusal under Section 2(a) is proper. See, e.g., In re Perry Manufacturing Co., 12 USPQ2d 1751 (TTAB 1989) and In re House of Windsor, Inc., 221 USPQ 53, 56- 57 (TTAB 1983), recon. denied, 223 USPQ 191, 192 (TTAB 1984). See also In re Sharky's Drygoods Co., 23 USPQ2d 1061, 1062 (TTAB 1992).
Applying the law to the facts of this case, we agree with the Examining Attorney that applicant's mark is geographically deceptive and hence is not registrable on the Supplemental Register. Applicant, in this regard, has stated that its goods "mostly" originate from Taiwan, Indonesia and Los Angeles. Moreover, there is no question that London, as the capital of England, is a well-known, major city and thus is a geographical designation. While, concededly, London also has some surname significance, there can be no doubt, in light of the evidence included with the first and second Office Actions, that the primary connotation of such term, especially as applied to items of clothing, is geographical given London's reputation as a center of fashionable apparel.
What is true for women's wear goes even more for men's. London is still renowned for its male fashions, especially in the more sober, traditional categories.--Id.
A portion of another travel guide, furnished as part of the second Office Action, similarly indicates that: "Clothes in London divide themselves easily into two categories: the traditional 'correct English' look you'll find on Savile Row and the Bond streets, and the new wave of British designers who take their cue from modern architecture and street fashion". A Bantam Travel Guide London 1989 at 167.
Other evidence submitted with the latter action consists of an article from the November 1990 edition of Elle magazine which notes that London, England is a "fashion capital" with "a well-deserved reputation for creating bold, daring fashion that seasonally piques the interest of international press and buyers eager to soak up or adopt the oozing creativity"; [FN10] an article from the September 1989 issue of Taxi magazine which refers to the Fall fashion collections from London, Milan, Paris and New York; and several stories from other publications, obtained from a search of the NEXIS data base, which report on fashions created by London-based designers.
Applicant further contends that the design of its mark, in which the words "LONDON LONDON" are "rendered in a fanciful and distinctive manner," is such that "the geographic connotation is subsumed in the meaning of the mark as a whole". There is nothing, however, in the repetition of the term "LONDON" in a reversed, upside-down presentation which would slow, obscure or preclude recognition of the primary geographical significance of such term. If anything, separately repeating the term in the way applicant has done in its mark serves to reinforce the image of London as a trendy center of fashion. Furthermore, as the Examining Attorney has observed, the hangtags (one of which is illustrated below) submitted as some of the specimens with the application feature a representation of a London policeman, in the recognizable uniform of a bobby, [FN12] as well as depicting the monetary symbol for the English pound.
*5 The hagtags, besides bearing applicant's mark next to the picture of a bobby, also contain the legend "the new untraditional look!" In this context, there simply is no doubt that the public would associate applicant's clothing with London, England and would regard the unorthodox, if not novel, manner in which applicant's mark displays the terms "LONDON" as evocative of the latest in the contemporary fashion designs for which London is well known.
Accordingly, and in light of applicant's admission in its supplemental brief that its mark is "geographically misdescriptive," it is clear that such mark is at least primarily geographically deceptively misdescriptive of its goods. The determinative issue in this appeal, therefore, is whether the geographical misdescription created by applicant's mark has been shown to be material to the purchase of items of clothing which are so marked. We think that the evidence of record fully supports a finding that the necessary showing has been met. Specifically, given the demonstrated fame of London as a center for contemporary as well as traditional fashions, and the cachet attached to the clothes made and sold there due to London's longstanding reputation for fine quality and stylish apparel, [FN13] we can only conclude that a London connection would be more appealing or desirable to prospective purchasers [FN14] and, thus, this factor would be material to the decision to purchase such clothing. See In re Perry Manufacturing Co., supra at 1752.
Applicant nevertheless contends that while the Patent and Trademark Office "is not bound by previous registrations, the great number of registered and soon-to-be registered trademarks comprising the word 'LONDON' for apparel goods is compelling evidence that the United States Patent and Trademark Office has consistently, overwhelmingly and recently, taken the position that 'LONDON', when used in connection with apparel goods, is not a material factor in a purchaser's decision to buy those goods". Such, however, is simply not the case. The drawings from the third-party applications are evidence of nothing other than the fact that the applications containing the drawings were filed. As to the third-party registrations, some of which issued anywhere from 15 to 25 years ago, and before the Board specifically adopted the materiality test for geographically deceptive marks as set forth in In re House of Windsor, supra, we observe that the primary significance of many of the marks, such as "LONDON FOG," "LONDON METRO" and "MAGGY LONDON," is not geographical. More importantly, as applicant acknowledges, each case must be decided on its own merits based on the evidence of record. We obviously are not privy to the records involved in the registered marks and, in any event, the allowance of registration by the Trademark Examining Groups does not control the result in another case, like this one, which involves a different mark.
Misdescriptiveness of a term may be negated by its meaning in the context of the whole mark inasmuch as the combination is seen together and makes a unitary impression. .... The same is not true with respect to explanatory statements in advertising or on labels which purchasers may or may not note and which may or may not always be provided. The statutory provision bars registration of a mark comprising deceptive matter. Congress has said that the advantages of registration may not be extended to a mark which deceives the public. Thus, the mark standing alone must pass muster, for that is what the applicant seeks to register, not extraneous explanatory statements.
In summary, whether it is the traditional tailoring of Savile Row and Bond Street, or the new wave stylings of its cutting-edge designers, fashion and London are inextricably linked in the public's mind. Applicant, by adopting and using the mark "LONDON LONDON" and design for its items of clothing, plainly seeks to benefit from the renown of London for fashionable articles of apparel. Because, in fact, no such connection exists with respect to applicant's goods, and since the favorable reputation of London for clothing is a material factor influencing the decision to purchase an item therefrom, we conclude that applicant's mark is geographically deceptive within the meaning of Section 2(a). It therefore is precluded by Section 23(a) from registration on the Supplemental Register.
Decision: The refusal under Sections 2(a) and 23(a) is affirmed.
FN1. Ser. No. 73/833,721, filed on October 25, 1989, which alleges dates of first use of November 15, 1987. The term "LONDON" is disclaimed.
FN2. Although registration was originally sought on the Principal Register, applicant amended the application to the Supplemental Register when, in response to a final refusal on the basis of geographical deceptiveness, it filed a request for reconsideration thereof, together with a notice of appeal, on April 25, 1991. Such amendment was requested by applicant even though other previously issued refusals on the grounds that its mark was primarily geographically deceptively misdescriptive and was likely to cause confusion had already been withdrawn.
FN3. Such brief was timely filed with a certificate of mailing dated June 24, 1991. Trademark Rule 2.142(b)(1).
FN4. While applicant characterizes the material furnished with its supplemental brief as "new evidence," it appears therefrom that four of the seven applications had been filed, and all but two of the 22 registrations had been issued, prior to applicant's filing of its notice of appeal. Such applications and registrations can scarcely be called "new evidence," that is, evidence which was not previously available.
FN6. It is apparent from the reply brief that the "countervailing evidence" applicant seeks to have considered is the copies of the third-party applications and registrations it submitted with its supplemental brief. This material, according to applicant, constitutes "substantial evidence that the United States Patent and Trademark Office has consistently found the term 'LONDON' to not play a material part in a purchaser's decision to purchase apparel goods bearing that word".
FN7. The Board's October 28, 1991 order is in error in indicating that "the amendment to the Supplemental Register serves to obviate the final refusal to register upon the Principal Register".
FN8. Similarly, when an applicant files a notice of appeal from a final refusal made under both Sections 2(a) and 2(e), and also files an amendment to the Supplemental Register (in order to overcome the Section 2(e) refusal), an Examining Attorney may not use the Board's suspension of the appeal and remand of the application for a determination of registrability on the Supplemental Register as an opportunity to introduce additional evidence in support of the prior refusal to register under Section 2(a). Instead, if an Examining Attorney determines upon remand that, while an amendment to the Supplemental Register is permissible, the Section 2(a) refusal must be maintained, and also desires to introduce additional evidence in support of such refusal, a request for remand of the application for that purpose, indicating the reasons therefor, should generally be submitted to the Board.
FN9. We also recognize that the Examining Attorney's failure to request a remand for the submission of additional evidence may have been the result of the error in the Board's October 28, 1991 order remanding the application for consideration of the amendment to the Supplemental Register (see footnote 7).
Set against the world-famous English style that is impeccable Savile Row suits, crisp Jermyn Street shirts, and shiny Church brogues is London's seemingly cyclical need to startle and shock not only itself but the rest of the planet as well.
FN11. Applicant's reliance upon Kayser-Roth Corp. v. Silver Knit Hosiery Mills, Inc., 481 F.2d 1348, 179 USPQ 41 (CCPA 1973), is misplaced. While, as to the marks "LONDON GUARD" and "LONDON LEGS," the majority of the court in that case did indeed agree that "the word 'LONDON' is arbitrary as applied to hosiery," which obviously is an item of wearing apparel, it also pointed out, with respect to the third-party registrations cited by the appellee, that: "As is so often the case, there is no further evidence of use of the marks on the goods recited therein, and there is nothing else in the record which would suggest any other reasonable connection between 'LONDON' and hosiery". The record here, by contrast, strongly supports the association of London with articles of apparel of all kinds, including such sportswear items as jackets, skirts, shirts and pants.
FN12. We judicially notice that The Random House Dictionary of the English Language (2d ed. 1987) at 231 defines "bobby" as an informal British term for "a policeman" and further indicates that such term had its derivation from "special use of Bobby, for Sir Robert Peel, who set up the Metropolitan Police system of London in 1828".
FN13. Applicant asserts that the materiality of the city of London for fashion is brought into question by the story appearing in the New York Times on June 4, 1989, which is headlined "Fashion: The Allure of Milan and London" and states, in part, that: "It would be all too easy to dismiss London and Milan as second cities--once-celebrated fashion capitals whose offerings these days pale in the blaze of French creativity". The very next sentence in the article, however, reads: "Easy, and shortsighted too, since each remains a mecca to fashion watchers, who look at London for trendy ideas and to Milan for the sort of refined innovation that ultimately finds its way into fashion's mainstream." The article, therefore, can hardly be said to disparage London's renown for fashion and, instead, plainly supports the Examining Attorney's position.
The most important retail shopping concentration in the United Kingdom is Oxford Street.... The heavy shopping activity flows southward along Regent Street to Piccadilly Circus, turns right along Piccadilly, with northward branches along Sackville Street and Savile Row, where eminent tailors still make some of the world's finest men's clothing. .... Parallel and a little further west, Bond Street is still a magnet for lavish spenders from around the world. South of Piccadilly, and parallel to it, Jermyn Street is studded with long-established makers of costly shirts, hats, and other male accoutrements.
23 New Encyclopaedia Britannica 296-97 (15th ed. 1988).
FN15. Applicant requests that the Board take judicial notice of 19 U.S.C. § 1304. According to applicant, "[t]hat statute requires that every article of foreign origin (or its container) imported into the United States ... 'shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article will permit in such manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article'."