July 04, 2024 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 030/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) SAM PRECIOUS METALS FZ-LLC
(2) SAMI RIYAD MAHMOUD ABU AHMAD
(3) ROSYSON FZE
Claimants
and
(1) SNYDER PRIME LIMITED
(2) PHOEBE LEAH TOOKER
(3) SHAKTHI CHAUHAN
Defendants
ORDER WITH REASONS OF JUSTICE ANDREW MORAN
UPON reviewing the First Defendant’s Application No CFI-030-2023/7 issued on 19 June 2024, and the supporting evidence in the form of the sixth witness statement of the Third Defendant and exhibits filed with it (“the Application”).
AND UPON reviewing the Claimants’ response to the Application and the evidence and annexures thereto, filed with it on 28 June 2024 (“the Response”).
AND UPON reviewing the Defendants’ reply to the response in the form of the ninth witness statement of the Third Defendant (“the Reply”).
IT IS HEREBY ORDERED THAT:
1. The Application that the Court may, “Pass an order declaring that the Claimant has not complied with the Order dated 13th March 2024 passed by H.E. Justice Nassir Al Nasser directing the Claimants to produce the Request Nos. 1, 3, 4 and 5 in the Defendant’s Redfern Schedule by no later than 19 March 2024 and is guilty of deliberate suppression of evidence. (ii) Pass any other order in the interest of justice (iii) Costs”, is dismissed in all its parts.
2. The documentary evidence produced with the Application and Response to it shall, notwithstanding the dismissal of the Application, be admitted in evidence at the Trial and included in the Supplementary Bundle of Documents, the Court has directed the Claimants’ representatives to assemble.
3. If so advised, any of the Claimants’ witnesses may make and file a further written statement to deal with any of the documents produced on this Application, they may do so by no later than 4pm on Monday 8 July 2024. Any statement so filed must be strictly confined to dealing with the documents produced and responding to the Defendants’ case concerning them.
4. The Defendants shall not be at liberty to file any evidence in reply to any such statement as may be filed by the Claimants under paragraph 3 of this order. Further, and for the avoidance of doubt, the Defendants shall not file any further statements or documentary evidence in these proceedings, without first making an application to the Court to do so, showing cause why such evidence should be admitted, at this stage of the proceedings.
5. The Defendants shall pay the Claimants’ costs of and incidental to dealing with the application and the filing of any further witness evidence to deal with the documents admitted in evidence, in any event.
Issued By:
Hayley Norton
Assistant Registrar
Date: 4 July 2024
At: 3pm
SCHEDULE OF REASONS
1. In the judgment of the Court, this is a misconceived and ill-founded application, making serious allegations of suppression of evidence and contempt of court on the part of the Claimants. It has been made without any proper basis or sufficient foundation. It is an application which should never have been made.
2. The only purported foundation for the serious allegations made in the Application and its supporting evidence, is an alleged breach of an order to produce documents in response to a generally worded request to produce documents, with a justification for the requests, in a Redfern Schedule (which was not even produced with the application). In their material parts, the requests were, in short summary, to produce board and shareholder resolutions, which “Resolutions are used in the loss calculation by the expert highlighted in page 6”. There is also in this Application before the Court, the unfounded suggestion that a collection of documentary exhibits which the Defendants now seek to rely on (SC16-25 and SOA 2018) fell within the request and order for disclosure, but were deliberately, maliciously and contemptuously not disclosed, so that there was a suppression of evidence by the Claimants.
3. The principal documents in question are three signed promissory notes and other documents pertaining to dealing with them, none of which were requested with the specificity of description the Rules of this Court require. Neither are they, in the judgment of the Court, within the scope of a reasonable and proportionate interpretation of the broad requests numbered 3 and 4 of the Redfern Schedule, or their justification. This court accepts the Claimants’ submissions to that effect in its Response of 28 June 2024. It further accepts the Claimants’ assertion (para 13 Response), that faced with a nonspecific, general and irregular request (in terms of Rule 28.17 of the Rules of the Dubai International Financial Centre Courts 2014 – the RDC), “a good faith effort was made to provide all documents requested by the Defendant and that no attempt was made to conceal any documents. Therefore, the Claimant's disclosure was proportionate to the needs of the case, and all material documents requested by the Defendant were duly disclosed”.
4. Once again, the Defendants have proceeded in a manner in relation to these documents it has lately produced, on which it seeks to rely as evidence in the case, in a wholly inappropriate manner. If they were unaware of these documents and/or if they have only recently come into their possession or control, then the proper reaction and approach, would have been to come before the Court with an application to introduce them into evidence and rely upon them. This could have been supported with a frank and honest explanation of how and why they had not been sought or obtained and produced, at an earlier stage in the proceedings. If the Defendants had genuinely believed that there was a failure to disclose documents within the request, and the order on the Redfern Schedule, the proper reaction would have been to argue that case at trial and invite the Court to draw such adverse inferences as might be appropriate. Instead of proceeding in that manner, they and their counsel have contrived to bring this ill-founded and unmeritorious application. The Application does appear to be a contrivance to bring new materials before the Court at an inordinately late stage by improper means and on spurious grounds. It has wasted an inordinate amount of the Courts’ limited time for preparation for the resumed trial, and put the Claimants to considerable trouble and expense, for which they will be compensated in costs.
5. Also, once again however, the Court must seek to do justice by considering the admission of late-coming materials, if they are potentially relevant to its determination of the real issues between the parties. It would only allow their admission at this extremely late stage in the proceedings, if it could ensure that no evidential prejudice would be suffered by the Claimants because of its late admission of the documents. There is in fact no proper application before the Court to admit them as evidence in the bundle, or to refer to them in cross-examination at the resumed hearing, but it is clear and evident in the Claimants’ Response, that they understand that admission of the new documents is the Defendants’ objective. If I were simply to dismiss the application without considering the admission of the exhibited documents, I have no doubt the Defendants would bring yet another application to admit them before or at the resumed trial, which would undoubtedly disrupt the proceedings once again.
6. I am satisfied the Claimants have said all they could possibly say in objection to the admission of the documents; but I note they have not asserted that they (or their witnesses) are unable to deal with them in evidence or submissions; or that they would be irredeemably prejudiced by their admission. I am satisfied that the Claimants can deal with the documents and are not irredeemably prejudiced in the prosecution of this claim, by the directions the Court has given in this order.
7. Because of the imminence of the resumption of the trial, I have considered it appropriate to anticipate the inevitable application to admit the documents that would be made. It would be wrong to penalise the Defendants by excluding the documentary evidence now produced, where the Claimants are not prejudiced to the extent of being unable to respond to, and deal with the documents, and in circumstances where the Court cannot lift the veil of privilege to decide how it came about that this ill-conceived and ungrounded application came to be made.
8. The Defendants’ case about what it claims the documents produced in this Application show, is sufficiently clear from the evidence supporting the Application and the evidence already given at trial; and the Court will consider their Counsel’s submissions as to their effect in due course at the resumed trial. There will therefore be no further written evidence allowed from the Defendants about the documents produced at this stage in the proceedings.
9. To avoid any prejudice to the Claimants as a result of this improper and late Application to bring additional documentary evidence before the Court, if any of their witnesses, (who are being recalled to deal with late-coming evidence from the Defendants and to deal with matters that ought to have been put to them, but were not put to them by the Defendants’ counsel), wish to make a further written statement to deal with any of the documents produced on this Application, they may do so. The statements must be strictly confined to dealing with the documents produced on this Application and responding to the Defendants’ case about them. They must be filed before 4pm on Monday 8 July 2024.
10. There is no permission for any statements in reply from the Defendants to such further evidence, because they have already put their case by the means adopted in this Application and because fairness does not require it. The Claimants’ counsel will, in any event, be putting their case to the Third Defendant, who is still giving evidence in cross examination, and he will be able to respond. Likewise with Mr Fakhran when he gives evidence. For the avoidance of any doubt and having regard to the Defendants’ conduct in this litigation hitherto, the court orders that the Defendants shall not file any further witness evidence or documentary exhibits by any means, without first making an application to the Court to do so.
11. The Defendants’ counsel is reminded once again of his duty to put the Defendants’ case on the documents and their claimed meaning and effect to the Claimants’ witnesses in cross-examination under the rule in Browne and Dunn (citation already given by the Court), so that they may respond to that case and give their explanation about the documents. In that manner, those witnesses who are being recalled will be able give their evidence about the case being put to them and the documents, orally to the Court.
12. These extraordinarily late procedural steps in the trial and unusual directions the Court has been required to issue, have been necessitated entirely by the Defendants’ late production of evidence by improper means, and the steps the Court has been forced to take, in order to ensure fairness, and to allow the trial to continue on the dates it has been fixed.