Claim No: CFI 091/2023

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) ACCESS GROUP DWC LLC
(2) PROEX PARTNERS LIMITED

Claimants

and

BLS INTERNATIONAL FZE

Defendant

ORDER WITH REASONS OF H.E. JUSTICE LORD ANGUS GLENNIE

UPON the Claimant’s Application No. CFI-091-2023/8 dated 25 August 2025 seeking an order that the Defendant’s Defence be struck out pursuant to Rule 4.16 (3) of the Rules of the DIFC Courts (the “RDC”) (the “Strike Out Application”), alternatively, for adverse inferences to be drawn pursuant to RDC 28.61 (the “Adverse Inferences Application”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendant at the Trial held before H.E. Justice Lord Angus Glennie on 1 and 2 September 2025 (the “Trial”)

IT IS HEREBY ORDERED THAT:

1. The Strike Out Application is dismissed.

2. The Adverse Inferences Application is continued until the end of the Trial.

3. The costs of the Applications are reserved.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 3 September 2025
At: 2pm

1. This is my decision on the Claimants’ application to strike out the Defence, alternatively for adverse inferences to be drawn.

2. I am grateful to counsel for their assistance. What I propose to do is just give my decision briefly and elaborate it in a written form in due course.

3. I am satisfied that there is a considerable amount of documentation in existence and in the control of the Defendants which may be relevant and has not been disclosed.

4. I am satisfied also that a significant part of the blame for that lies with the Defendant. It is unnecessary to consider at this stage what particular parts of the orders of the court have been breached, but I am satisfied that the Defendants are in breach to a significant extent.

5. When I come to write a more thorough judgment, I will go through some of the factual matters relating to that, but that is all I propose to stay at this stage.

6. It is in those circumstances that the Application to strike out is made; and it can be made, I should emphasise, at any stage before the trial, during the trial or even at the end of the trial.

7. The test to be applied is whether there is a substantial risk that a fair trial is not possible. If so, it may be appropriate to strike out the claim or defence, as the case may be, and give judgment in favour of the aggrieved party.

8. But the Court will not act hastily and without regard to the consequences. A strike out is not intended as a penalty or punishment for non-disclosure or for other breach of the rules; other punishments are available for that, such as costs.

9. Strike out is intended to prevent an unfair trial taking place; so even when the Court is satisfied that there has been an abuse of process, strike out is a last resort and should only be considered if there were no other alternative that would achieve the result considered necessary, in other words that would achieve a fair trial. So, even assuming abuse of process, the Court must still, as a separate step, identify a proportionate sanction and only strike out in extreme circumstances.

10. The question, as always, is: is the court satisfied there cannot be a fair trial and, if so, is it appropriate to strike out.

11. It is in assessing whether or not a fair trial is still possible that the question of adverse inferences comes into play. This was raised as part of an alternative application by the Claimant but it seems to me that it deserves more consideration than perhaps either party was willing to give it. The question of adverse inference has not been much discussed in the cases to do with strike out, but it deserves attention.

12. The court is in the difficult position of having to make an assessment before hearing evidence. Is it a case where the ability to draw adverse inferences, where appropriate, can protect the Claimant's position and enable a fair trial?

13. I am not persuaded at the moment that any potential injustice cannot be averted by the Court's willingness, in an appropriate case, to draw adverse inferences from the absence of documents which ought to have been produced.

14. For that reason, I refuse the Application to strike out the defence, but I make two important points to consider.

15. First, the question of adverse inferences will ultimately be assessed on an issue by issue basis and the question in each case will be on that particular issue is the absence of documentation such that the Court should be minded to draw an adverse inference.

16. Secondly, it is always possible, as I said at the beginning, to re-argue, at the end of the trial, on the basis that the prejudice which has ultimately emerged is much clearer than it is presently able to judge on the basis of documents alone.

17. So the Application is refused so far as it concerns the striking out of the defence and is held over as regards the question of adverse inferences.