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CFI 020/2014 – Search Order

CFI 020/2014 – Search Order

June 12, 2014

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Claim No: CFI 020/2014

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS


IN THE COURT OF FIRST INSTANCE
BEFORE THE DEPUTY CHIEF JUSTICE SIR JOHN CHADWICK

BETWEEN

GFH CAPITAL LIMITED Applicant
and

DAVID LAWRENCE HAIGH

Respondent

SEARCH ORDER

PENAL NOTICE

IF YOU DAVID LAWRENCE HAIGH DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE YOUR ASSETS SEIZED.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS THE RESPONDENT TO BREACH THE TERMS OF THIS ORDER MAY ALSO BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.

THIS ORDER

1. This is a Search Order made against the Defendant on 3 June 2014 by Deputy Chief Justice Sir John Chadwick on the application of the Claimant. The Judge read the Affidavits listed in Schedule F and accepted the undertakings set out in Schedules C, D and E at the end of this order.

 

2. This order was made ex parte at a hearing of which the Defendant had notice and was represented

 

3. The Defendant may (if so advised) if he is in custody nominate an individual to act as his representative for the purposes of execution of this order. Such representative shall be a person subject to the jurisdiction of this court.

 

4. This order must be complied with by the Defendant.

 

THE SEARCH

5. The Defendant must permit the following persons:

 

(a) Mr Philip Punwar (‘the Supervising Legal Representative’);

 

(b) Mr Peter Matthew James Gray, or Mr Hardeep Plahe or Mr Paul Harter, a legal representative in the firm of Gibson, Dunn & Crutcher LLP, the Claimant’s legal representatives; and

 

(c) up to one other person being a legal representative in the firm of Gibson, Dunn & Crutcher LLP, accompanying them,
(together ‘the search party’), to enter the premises mentioned in Schedule A to this order (‘the premises’) so that they can search for, inspect, photograph or photocopy, and deliver into the safekeeping of the Claimant’s legal representatives all the documents and articles which are listed in Schedule B to this order (‘the listed items’).

 

6. Having permitted the search party to enter the premises, the Defendant must allow the search party to remain on the premises until the search is complete. In the event that it becomes necessary for any of those persons to leave the premises before the search is complete, the Defendant must allow them to re-enter the premises immediately upon their seeking re-entry on the same or the following day in order to complete the search.

 

RESTRICTIONS ON SEARCH

7. This order does not affect, and is made without prejudice to, any action by the law enforcement agencies of Dubai.

 

8. Before the Defendant allows anybody onto the premises to carry out this order, he is entitled to have the Supervising Legal Representative explain to him what it means in everyday language.

 

 9. The Defendant is entitled to seek legal advice and to ask the Court to vary or discharge this order. Whilst doing so, he may ask the Supervising Legal Representative to delay starting the search for up to 2 hours or such other longer period as the Supervising Legal Representative may permit. However, such person must:

(a) comply with the terms of paragraph 18 below;

 

(b) not disturb or remove any listed items; and

 

(c) permit the Supervising Legal Representative to enter, but not start to search.

 

10. Before permitting entry to the premises by any person other than the Supervising Legal Representative, the Defendant may, for a short time (not to exceed two hours, unless the Supervising Legal Representative agrees to a longer period) gather together any documents he believes may be privileged; and hand them to the Supervising Legal Representative for him to assess whether they are privileged as claimed. If the Supervising Legal Representative decides that of any of the documents may be privileged or is in any doubt as to their status, he will exclude them from the search and retain them in his possession pending further of the Court.

 

11. If the Defendant wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Legal Representative and keep him informed of the steps being taken.

 

12. No item may be removed from the premises until a list of the items to be removed has been prepared, and a copy of the list has been supplied to the Defendant, and he has been given a reasonable opportunity to check the list.

 

13. The premises must not be searched, and items must not be removed from them, except in the presence of the Defendant.

 

14. If the Supervising Legal Representative is satisfied that full compliance with paragraphs 12 or 13 is not practicable, he may permit the search to proceed and items to be removed without fully complying with them.

 

DELIVERY UP OF ARTICLES/DOCUMENTS

15. The Defendant must immediately hand over to the Claimant’s legal representatives any of the listed items in Schedule B, which are in his possession or under his control, save for any computer not belonging to the Claimant, or hard disk integral to any computer not belonging to the Claimant. Any items the subject of a dispute as to whether they are listed items must immediately be handed over to the Supervising Legal Representative for safe keeping pending resolution of the dispute or further order of the Court.

 

16. The Defendant must immediately give the search party effective access to the computers on the premises which do not belong to the Claimant, with all necessary passwords, to enable the computers to be searched. If they contain any listed items the Defendant must cause the listed items to be displayed so that they can be read and copied. The Defendant must provide the Claimant’s legal representatives with copies of all listed items contained in the computers. All reasonable steps shall be taken by the Claimant and the Claimant’s legal representatives to ensure that no damage is done to any computer or data. The Claimant and his representatives may not themselves search the Defendant’s computers unless they have sufficient expertise to do so without damaging the Respondent’s system.

 

PROVISION OF INFORMATION

17. The Defendant must, as soon as reasonably able to do so but in any event immediately on the Defendant’s release from the custody of the Dubai authorities, or, if later, within 5 working days after service of this order inform the Claimant’s legal representatives (in the presence of the Supervising Legal Representative) so far as he is aware where all the listed items in Schedule B are.

 

18. As soon as he is reasonably able to do so after service of this order, the Defendant must swear and serve an affidavit setting out the above information. COSTS

 

19. Costs reserved to the judge hearing the application for a freezing order on notice.

 

COSTS

19. Costs reserved to the judge hearing the application for a freezing order on notice

 

EFFECT OF THIS ORDER AND EXECUTION

20. This order does not confer any right on the Claimant, its legal representative or the Supervising Legal Representative to enter the premises other than by permission of the Defendant or some other person having responsible control of the premises.

 

VARIATION AND DISCHARGE OF THIS ORDER

21. Anyone served with or notified of this order (including, for the avoidance of doubt, the Supervising Legal Representative) may apply to the Court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Claimant’s legal representatives. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant’s legal representatives in advance.

 

INTERPRETATION OF THIS ORDER

22. In so far as the Defendant is ordered not to do something he must not do it himself or in any other way. He must not do it through others acting on his behalf or on his instructions or with his encouragement.

 

COMMUNICATIONS WITH THE COURT

All communications to the Court about this order should be sent to:

Ground Floor, Building 4, Gate District, DIFC, UAE
Telephone: + 971 4 427 3333
Fax: +971 4 427 3330
Email: registry@difccourts.ae

The offices are open between 10am to 5pm, Sunday to Thursday (excluding Public Holidays)


SCHEDULE A

Dubai/Al Sahab 1, Apartment 1903, Dubai


SCHEDULE B

Laptops belonging to the Claimant
iPhones (or any other mobile device) belonging to the Defendant
Any bank statements, whether relating to bank accounts in the Defendant’s name or otherwise.
Any details of any property owned (or partially owned) by the Defendant


SCHEDULE C

UNDERTAKINGS GIVEN TO THE COURT BY THE APPLICANT

(1) If the Court later finds that this order or carrying it out has caused loss to the Defendant, and decides that the Defendant should be compensated for that loss, the Claimant will comply with any order the Court may make. Further if the carrying out of this order has been in breach of the terms of this order or otherwise in a manner inconsistent with the Claimant’s legal representatives’ duties as officers of the Court, the Claimant will comply with any order for damages the Court may make.

 

(2) The Claimant will not, without the permission of the Court, use any information or documents obtained as a result of carrying out this order except for the purposes of these proceedings (including adding further Defendants).

SCHEDULE D

UNDERTAKINGS GIVEN TO THE COURT BY THE CLAIMANT’S LEGAL REPRESENTATIVES

(1) The Claimant’s legal representatives will provide to the Supervising Legal Representative:

 

(i) a service copy of this order;

 

(ii) the claim form (with defendant’s response pack) ;

 

(iii) copies of the affidavits and exhibits capable of being copied containing the evidence relied upon by the Claimant;

 

(iv) a note of any allegation of fact made orally to the Court where such allegation is not contained in the affidavits or draft affidavits read by the Judge; and

 

(v) a copy of the skeleton argument produced to the Court by the Claimant’s legal representatives.

 

(2) The Claimants’ legal representatives will answer at once to the best of their ability any question whether a particular item is a listed item.

 

(3) Subject as provided below the Claimant’s legal representatives will retain in their own safe keeping all items obtained as a result of this order until the Court directs otherwise.

 

(4) The Claimant’s legal representatives will return the originals of all documents obtained as a result of this order (except original documents which belong to the Claimant) as soon as possible and in any event within two working days of their removal.

SCHEDULE E

(5) UNDERTAKINGS GIVEN BY THE SUPERVISING LEGAL REPRESENTATIVE

 

(6) The Supervising Legal Representative will offer to explain to the person served with the order other than the Defendant its meaning and effect fairly and in everyday language, and to inform him of his right to take legal advice (including an explanation that the Defendant may be entitled to avail himself of legal professional privilege) and to apply to vary or discharge this order as mentioned in paragraph 21 above.

 

(7) The Supervising Legal Representative will retain in the safe keeping of his firm all items retained by him as a result of this order until the Court directs otherwise.

 

(8) Unless and until the Court otherwise orders, or unless otherwise necessary to comply with any duty to the Court pursuant to this order, the Supervising Legal Representative shall not reveal to any person any information relating to those items, and shall keep the existence of such items confidential.

 

(9) Within 48 hours of completion of the search the Supervising Legal Representative will make and provide to the Claimant’s legal representatives, the Defendant or his legal representatives and to the Judge who made this order (for the purposes of the Court file) a written report on the carrying out of the order.

SCHEDULE F

AFFIDAVITS The Applicant relied on the following affidavits:
[name] [number of affidavit] [date sworn] [filed on behalf of]

(1) Jinesh Patel, First Affidavit, 26 May 2014, Claimant

(2) Ayman Merdas, First Affidavit, 2 June 2014, Claimant

 

NAME AND ADDRESS OF APPLICANT’S LEGAL REPRESENTATIVES
The Applicant’s legal representatives are:

Peter Gray
Gibson, Dunn & Crutcher LLP
Building 5, Level 4
Dubai International Financial Centre
P.O. Box 506654, Dubai, UAE
Tel: +971 4 704 6805
Mobile: +971 503 513 247
Fax: +971 4 370 0388
PGray@gibsondunn.com

 

Issued by:
Mark Beer
Registrar
Date of Issue: 12 June 2014
AT: 5pm

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