Firm Matters

Kartikey Mahajan, Partner at Khaitan & Co successfully represented Miloslav Makovini and Pharm Trade Holding Ltd before the DIFC Court of Appeal in Kapova v Makovini & Another. In a landmark decision, the DIFC Court of Appeal dismissed the appeal and laid down the law on Tomlin orders for the first time — confirming that the DIFC Courts can enforce a settlement within a stayed action, even where the consent order departs from the classic Tomlin form.

The dispute arose from a settlement agreement reached at the end of a DIFC trial. The parties' consent order stayed the proceedings but did not strictly follow the Tomlin form prescribed by RDC 36.29. The appellant argued that the DIFC Courts therefore could not enforce the settlement in the existing proceedings.

The Court of Appeal upheld the first-instance decision and held that:

• the DIFC Courts have jurisdiction to lift a stay and enforce a settlement agreement, even where the consent order is not in strict Tomlin form, in effect emphasising substance over form;
• the immediate judgment was properly entered on the settlement sum;
• the misrepresentation and economic duress arguments by the appellants failed, with no particularised case of fraud and no identifiable unlawful threat; and
• our clients were entitled to their costs.

Kartikey Mahajan (Partner) Quote: "The Court of Appeal engaged closely with established common-law authority since early 1900’s in reaching its decision, which is precisely why international parties increasingly trust the DIFC Courts to deliver predictable, principled outcomes.”