Case No: CFI 088/2025

IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

SKATTEFORVALTNINGEN
(the Danish Customs and Tax Administration)

Claimant

and

(1) ELYSIUM GLOBAL (DUBAI) LIMITED
(2) EMERALD INDUSTRIES L.L.C

Defendants

ORDER WITH REASONS OF H.E. JUSTICE MARK PELLING

UPON the Second Defendant’s Application No. CFI-088-2025/1 dated 7 January 2026 seeking permission for the proceedings to be conducted in private (the “Privacy Application”)

AND UPON the Second Defendant’s Application No. CFI-088-2025/2 dated 7 January 2026 seeking to challenge the DIFC Court’s jurisdiction (the “Jurisdiction Application”)

AND UPON the Consent Order dated 3 March 2026 for the Privacy Application to be determined without a hearing

AND UPON the Jurisdiction Application hearing being listed before H.E. Justice Mark Pelling on 3 March 2026 (the “Jurisdiction Application Hearing”)

IT IS HEREBY ORDERED THAT:

1. The Jurisdiction Application Hearing will take place in private.

2. The judgment disposing of the Jurisdiction Application will be published in the usual way with all issues concerning redaction and/or anonymisation being determined following the circulation of the judgment in draft to the parties.

3. Publication of this judgment will take place at the same time as the substantive judgment with any anonymisation of these reasons being in the same terms as may be ordered in respect of the substantive judgment.

4. Any further privacy directions sought by the Second Defendant shall be considered once the Jurisdiction Application has been determined.

5. The costs of the Privacy Application will be reserved to be determined at the same time as the costs issues relating to the Jurisdiction Application.

Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 15 May 2026
At: 4pm

Introduction

1. This is the determination of an application by the Second Defendant (“Emerald”) for an Order pursuant to Rule 35.4 of the Rules of the DIFC Courts (“RDC”) that the proceedings brought by the Claimant (“Skatt”) against Emerald and any hearings held to resolve these proceedings be kept private (the "Privacy Application"). The parties consent to the Privacy Application being resolved on paper ahead of a hearing to determine the Jurisdiction Application. This judgment determines the Privacy Application.

2. It is not necessary in this judgment to set out in detail the factual allegations that are made by Skatt against Emerald. It is sufficient to note that Skatt makes serious allegations of fraud against Emerald, which depend almost exclusively on inference. Emerald’s case is that allowing these proceedings to proceed in public risks serious, disproportionate, and irremediable harm to Emerald and that in consequence the Court should grant the Privacy Application and require that its jurisdiction challenge (and these proceedings generally if they continue beyond the jurisdiction challenge) be heard in private.

Framework Principles

3. The default principle is that all hearings will take place in public – see Art 8 of Law No. 2 of 2025 (“Courts Law”), RDC 35.2 and Lumbini v Lotika CFI 060/2021 where Justice Cooke held that there is a strong presumption in favour of proceedings being held in public.

4. To that general principle, there are a number of identified potential exceptions, which are set out in RDC 35.4. Emerald relies on RDC 35.4(7), which in so far as is material provides that a hearing “…may be in private if …the Court considers this to be necessary, in the interests of justice.”. The effect of the default rule is that (i) generally where RDC 35.4(7) is relied on, derogations from the open justice principle will be permitted only where the derogation sought is shown to be strictly necessary to secure the proper administration of justice and (ii) the extent of any derogation permitted will be no more than the minimum necessary to achieve the desired purpose.

5. The only other provision that it is necessary to note is RDC 35.5, which permits the Court to anonymise proceedings “… if it considers non-disclosure necessary in order to protect the interests of that party…”.

6. As will be apparent from this summary there are a number of options available including (a) dismissing a privacy application; (b) granting it in unqualified terms; or (c) granting it for the duration of the hearing whilst permitting publication of the judgment either in (i) unqualified or (ii) anonymised or redacted terms.

Discussion and Disposal

7. In resisting this Application, Skatt submits first that Emerald has not identified which sub-paragraph of RDC 35.4 it relies upon. Whilst that might have been so prior to the filing of skeleton arguments, Emerald made clear in its skeleton argument that it was relying exclusively on RDC 35.4(7).

8. Skatt relies on a number of cases decided by the courts of England and Wales, which emphasise that the open justice principle as being a critical safeguard in ensuring transparency and the effectiveness of a justice system. However, they are of limited assistance in this case because they only provide further support of the default position being as set out above. Skatt further maintains that any reliance by Emerald on RDC 35.4(7) breaks down because no necessity has been demonstrated.

9. What Skatt does not grapple with is Emerald’s submission that when considering whether to hold proceedings in public, the Court should normally make a privacy order where proceedings involve allegations of fraudulent conduct made against parties who have not yet had the opportunity to defend themselves, and where there is a risk of serious or disproportionate harm to a such a party's business interests. In support of that proposition, Emerald relies on Techteryx Ltd v Aria Commodities DMCC [2025] DEC 001/2025 (24 March 2025) where Justice Black held, in the context of a contested application for worldwide freezing relief in aid of proceedings in the High Court of Hong Kong Special Administrative Region, that an application by the claimant that a privacy order be lifted should be rejected “…on the ground that the early stages of proceedings where allegations of fraudulent conduct are made against parties who have not yet had the opportunity to defend themselves should normally be held in private…”. In my judgment that conclusion is of limited value as a citable authority because the issue does not appear to have been argued by reference to the key primary legislation and Rules that apply in this area or the key authorities that are relevant. I doubt whether Justice Black would have considered this passing comment to be one capable of setting a precedent for the conduct of other cases, which depends on the application of the general principles set out above to the facts material to any particular privacy application coming before the Court.

10. In arriving at a conclusion as to how best to proceed, I take account of the fact that the substantive jurisdictional challenge is not dispositive of the parties’ rights and thus a less rigorous application of the general principle may be justified than would be the case for example where privacy was being sought for the whole of a trial. I take account of the fact that Emerald considers the deployment in public of allegations that it strenuously disputes to be at least potentially extremely commercially damaging. Whilst there is some factual dispute about this assertion, it has to be borne in mind that this Application is not the opportunity for a mini trial of highly contentious issues on inevitably inadequate evidence. Unless it can be shown that the assertion of a risk of severe commercial damage is unarguable or advanced otherwise than honestly and in good faith, significant weight should be given to such an assertion. Here, there is no proper basis for me concluding that what is asserted is unarguable or advanced dishonestly or in bad faith.

11. In those circumstances, it is necessary to balance the risk of reputational and commercial damage being suffered by Emerald against the public interest in the hearing of a jurisdiction challenge in public.

12. With some hesitation I conclude that it is appropriate that the hearing of this application should take place in private. I reach that conclusion because:

13. For those reasons I direct that:

Any further privacy directions sought by Emerald can be considered once the jurisdictional challenge has been determined.

14. The costs of the Privacy Application will be reserved to be determined at the same time as the costs issues relating to the jurisdictional challenge. The Privacy Application is entirely parasitic on the jurisdiction challenge and would not have been made but for that challenge.