Claim No. CFI 031/2025

IN THE COURTS OF DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF FIRST INSTANCE

BETWEEN

SALEHIYA TRADING COMPANY

Claimant

and

OLYMPUS EUROPA SE & CO. KG

Defendant

REASONS FOR THE ORDER OF H.E. JUSTICE RENE LE MIERE DATED 20 OCTOBER 2026

A. Introduction

1. The Defendant, Olympus Europa SE & Co. KG (the “Defendant”), applied for an order that a passage in an internal PowerPoint presentation prepared as part of the process by which Olympus considered and obtained approval for the non-renewal of its distributorship arrangement with the Claimant, Salehiya Trading Company (the “Claimant”) is privileged and consequential relief (the “Application”).

2. The Application is contained in the Defendant's letter to the Court dated 16 October 2026. The Claimant opposed the Application by its letter dated 19 October 2026. The Defendant replied by letter of the same date. The Application was referred to me for determination on the papers.

3. The trial commenced before H.E. Justice Al Sawalehi (the “Trial Judge”) on 19 October 2026. At the commencement of the trial, the Trial Judge informed the parties that he had already seen the relevant material in preparing for the trial. After discussion with counsel, the Application was referred to another Judge for determination.

4. The Trial Judge having seen the material did not render the Application academic. It remained necessary to determine whether the disputed passage is protected by legal professional privilege and, if so, whether the Claimant should be permitted to use it or its contents at trial.

5. On 20 October 2026, I determined that the disputed passage attracts legal professional privilege and the Court made orders to that effect and consequential orders concerning its use. These are my reasons for making those orders.

B. The disputed passage

5. The relevant presentation is Annex 8.2, entitled “Business Partner Termination Salehiya | KSA | MSD”. It is marked “OLYMPUS CONFIDENTIAL” and formed part of Olympus's internal process concerning termination of its relationship with the Claimant. The presentation states that the Application contains information concerning the contractual relationship and an overview of business and legal risks and seeks approval for, amongst other things, termination of the partnership and any applicable compensation fee.

6. A slide headed “3. Investigating Open orders and AR” contains the following statement:

“Based on our experience and legal advice received from experts, compensation is expected to be between 1 and 2 times the average three years net revenue of Salehiya (Between $1 M to $2M).”

I will refer to that sentence as the Disputed Passage.

7. The immediately following slide is headed “4. Legal Position in current distributor contract with Salehiya” and was redacted in full when the presentation was produced.

C. The parties' positions

8. The Defendant submitted that the Disputed Passage records or reveals the effect of legal advice received concerning its potential exposure to compensation if the distributorship were terminated. It says that the passage should have been redacted when the presentation was produced but was inadvertently overlooked. It seeks orders preventing its use at trial and requiring the copies in the Trial Bundle to be replaced by redacted copies.

9. The Claimant disputes that privilege has been established. It submitted, amongst other things, that the sentence rests upon two sources, namely Olympus's own experience and legal advice, and that Olympus's experience is not privileged. In the alternative, it submits that any privilege can extend only to the words “and legal advice received from experts”.

10. The Claimant further submitted that it should be permitted to use the passage. It relies on the production of the presentation, its appearance several times in the Trial Bundle, and DEF_00000569 being exhibited to the Third Witness Statement of Lauren Banner dated 7 August 2026 and used in a contested application before the Court.

C. Legal principles

11. It is common ground for present purposes that the applicable principles of legal professional privilege in the DIFC Courts are generally consistent with English law.

12. Legal advice privilege protects confidential communications between lawyer and client made for the dominant purpose of giving or obtaining legal advice. It applies to communications with in-house lawyers where the lawyer is acting in a professional legal capacity.

13. A confidential internal document may itself contain privileged material where and to the extent that its disclosure would reveal the substance of privileged legal advice previously received.

14. Conversely, a document does not become privileged merely because a lawyer contributed to it or because it concerns a matter upon which legal advice was obtained. Where a document contains both privileged and non-privileged material, privilege protects so much of the document as records or reveals the substance of privileged advice.

15. Rule 28.67 of the Rules of the DIFC Courts (“RDC”) provides:

“Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the Court.”

D. Is the Disputed Passage privileged?

D1 The Disputed Passage

19. The burden of establishing privilege lies upon the Defendant. I am satisfied that it has discharged that burden.

20. I reach that conclusion from the cumulative effect of the language of the Disputed Passage, the nature and purpose of Annex 8.2, its surrounding contents and the evidence concerning the preparation of the presentation.

21. First, the Disputed Passage expressly states that the identified compensation assessment is based, at least in part, upon “legal advice received from experts”. What follows is not merely a statement that legal advice was obtained. The sentence identifies the resulting assessment: compensation was expected to be between one and two times the Claimant's average three-year net revenue, producing a range of approximately USD 1 million to USD 2 million.

22. Second, the context supports the natural meaning of those words. Annex 8.2 was part of an internal approval process concerning the proposed termination. Its stated scope included business and legal risks and an applicable compensation fee. The project roadmap also contemplated evaluation of possible compensation and input from the legal department.

23. Third, there is evidence regarding the preparation of Annex 8.2. Tarek Choucair says that, in March 2023, he began preparing the presentation at Ronald Boueri's request. He describes Annex 8.2 as part of Olympus's standard internal process for obtaining approval to change a distributor. He says that members of the Dubai team, principally Alexandre Romand, provided input into the documents.

24. Ronald Boueri independently says that Tarek Choucair and Alexandre Romand, with some input from himself, finalised the internal annexes to the business plan for changing the distributor. His evidence identifies Alexandre Romand as Regional Legal Counsel.

25. There are limitations in that evidence. There is no witness statement from Mr Romand concerning the Disputed Passage. The evidence does not identify the external advisers, the terms or date of any external advice, or establish directly which part of the compensation assessment was contributed by legal advice and which part by Olympus's own experience.

26. I do not regard those matters as fatal. The question is whether the material before the Court is sufficient to establish that disclosure of the Disputed Passage would reveal privileged legal advice. It is neither necessary nor appropriate to require production of the underlying privileged communication to establish that another document reveals its substance.

27. The express terms of the Disputed Passage are important. The author did not merely record that legal advice had been obtained regarding termination. The author attributed the stated assessment of Olympus's likely compensation exposure, at least in part, to legal advice. This is reinforced by the presentation's purpose and structure, the involvement of in-house legal counsel in its preparation, and the fact that the immediately succeeding slide, which dealt expressly with the legal position under the distributorship agreement, was redacted in full.

28. I am therefore satisfied that the Disputed Passage reveals at least the substance or conclusion of privileged legal advice concerning Olympus's potential compensation exposure upon termination of the distributorship.

29. It is unnecessary to find, and the evidence does not establish, that the precise figure or methodology stated in the Disputed Passage was itself the advice given by any identified lawyer. It is sufficient that disclosure of the passage would reveal the substance or conclusion of privileged legal advice.

D2 The Claimant's alternative position

30. I do not accept the Claimant's alternative submission that privilege can adequately be protected by redacting only the words “and legal advice received from experts”.

31. The sentence communicates a single assessment of expected compensation and expressly identifies both Olympus's experience and legal advice as bases for that assessment. The fact that the assessment was also informed by Olympus's commercial experience does not prevent the sentence from revealing something substantive about the legal advice.

32. There is no evidential basis upon which the Court could separate the compensation range into a part attributable to commercial experience and another part attributable to legal advice.

33. Redacting only the words referring expressly to legal advice would remove the identification of one source of the assessment while leaving disclosed the assessment which the sentence says that source helped to produce. That would not adequately protect the privileged information.

E. inadvertent disclosure and permission to use

E1 RDC 28.67:

34. I am satisfied that the Defendant inadvertently allowed the Claimant to inspect privileged material contained in the Disputed Passage within the meaning of RDC 28.67.

35. The disclosure exercise was substantial. That circumstance provides relevant context and makes an error possible, but does not of itself establish inadvertence.

36. The stronger considerations arise from the documents themselves. The Disputed Passage expressly refers to legal advice and then states an assessment concerning potential compensation. Other material in the presentation was redacted on privilege grounds. In particular, the immediately succeeding slide, concerning Olympus's legal position under the distributorship agreement, was redacted in full.

37. There is also no apparent reason why Olympus would deliberately disclose an assessment expressly stated to be based in part upon legal advice concerning its potential compensation exposure while withholding the immediately following material concerning its legal position.

38. Those matters satisfy me that the omission of the redaction was a mistake rather than an intentional disclosure. Viewed objectively and in context, the disclosure is much more readily explained by an overlooked redaction on an otherwise principally commercial slide.

39. The Defendant acted promptly after discovering the omission. Although relevant to the overall circumstances, that subsequent conduct is not the basis of my conclusion that the disclosure was inadvertent.

40. RDC 28.67 therefore applies. The Claimant may use the Disputed Passage or its contents only with the permission of the Court.

41. The Disputed Passage reveals privileged legal advice concerning a matter related to the issues at trial. The remaining circumstance relied upon by the Claimant in support of its entitlement to use the passage is the Defendant's subsequent use of DEF_00000569, to which I now turn.

E2 Subsequent use of DEF_00000569

42. The Claimant places particular reliance upon the inclusion of DEF_00000569 in the exhibit to the Third Witness Statement of Lauren Banner dated 7 August 2026 and upon that witness statement subsequently having been used in a contested application.

43. That is a material circumstance. The presentation did not simply remain among the documents originally produced. It was later selected and exhibited by the Defendant's solicitors.

44. Nevertheless, the evidence does not establish that the Defendant deployed the Disputed Passage or the legal advice which it reveals.

45. Paragraph 11 of Ms Banner's statement relied specifically upon slide 6 of DEF_00000569 concerning audit remediation and transparency and data sharing. It did not refer to the compensation slide containing the Disputed Passage, quote the Disputed Passage or advance any submission based upon it.

46. There is a material distinction between deliberately deploying privileged information in support of a party's case and exhibiting a larger document for the purpose of relying upon different, non-privileged material within it.

47. I am not satisfied that the Defendant's reliance upon another part of DEF_00000569 constituted deployment of the Disputed Passage or of the privileged legal advice which it reveals.

48. That subsequent use of DEF_00000569 provides no sufficient basis for permitting the Claimant to use the Disputed Passage. To the extent that the Claimant contends that the inclusion of DEF_00000569 in Ms Banner's exhibit and the Defendant's reliance upon another part of that presentation waived privilege in the Disputed Passage, I reject that contention.

49. It is unnecessary to determine whether there has been any broader waiver extending to the underlying legal advice or other privileged communications. I therefore decline to grant the Claimant permission under RDC 28.67 to use the Disputed Passage or its contents.

E3 The Trial Judge having seen the passage

50. By the time the trial commenced, the Trial Judge had already seen the relevant material while preparing for trial.

51. That circumstance means that the original object of preventing the Trial Judge from seeing the Disputed Passage can no longer be achieved. It does not determine whether the Claimant should be permitted to use privileged material in cross-examination or submissions.

52. I do not consider it necessary or appropriate for me to give any direction to the Trial Judge concerning information already seen. The appropriate orders are directed to the parties' future use of the Disputed Passage and to the form of the Trial Bundle.

E4 The May 2023 email chain

53. The Claimant submits that, if the Disputed Passage is redacted, it wishes to rely upon the May 2023 email chain identified as DEF_00000581.

54. The Defendant does not claim privilege over that document and does not object to its inclusion in the Trial Bundle.

55. There is accordingly no privilege issue for me to determine concerning DEF_00000581. Nothing in the orders I make will prevent the Claimant from relying upon that document, subject to any question of relevance, admissibility or permissible use which arises before the Trial Judge.

56. Any question concerning the permissible use of DEF_00000581, including any question of privilege arising from a proposed question to a witness, is a matter for the Trial Judge if it arises.

F. Relief

57. The Defendant originally sought relief extending to deletion or return of documents and destruction or redaction of notes, work product and draft submissions referring to the Disputed Passage.

58. I do not consider relief of that breadth necessary or proportionate. The passage has been available to the parties for some time, has necessarily been considered for this Application, and has already been seen by the Trial Judge. Orders directed at eliminating all existing knowledge of the passage would go further than necessary to protect the privilege for the remainder of the proceedings.

59. The appropriate relief is directed to future forensic use of the Disputed Passage or its contents. Subject to any further order of the Court, the Claimant should not be permitted to rely upon, refer to or quote from the Disputed Passage, or use the Disputed Passage or its contents in the examination of any witness, in these proceedings. The copies of the relevant slide in the Trial Bundle should be replaced with copies in which the Disputed Passage is redacted.

60. An exception should be made to permit reference to the Disputed Passage or its contents to the extent reasonably necessary for the purposes of this Application and any application for permission to appeal or appeal concerning the orders made upon it.

G. Conclusion

61. For those reasons, I find that:

62. The costs of the Application are reserved.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 22 October 2026
At: 3pm