Claim No. CFI 104/2025

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

(1) WTS FACILITY MANAGEMENT LLC
(2) TAMER AHMED MOHAMED KHALIL

Claimants

and

TITIAN RSC LIMITED

Defendant

ORDER WITH REASONS OF H.E. JUSTICE THOMAS BATHURST

UPON the Claimants’ Application No. CFI-104-2025/1 dated 16 April 2026, seeking document production (the “Application”)

AND UPON review of the Defendant’s evidence in answer dated 28 April 2026

AND UPON review of the Claimants’ evidence in reply dated 4 May 2026

AND PURSUANT TO the Rules of the DIFC Courts (“RDC”)

IT IS HEREBY ORDERED THAT:

1. Pursuant to RDC 28.48 and 28.49 the Defendant shall produce the following documents in its possession, custody and control:

2. The Claimants’ Application is otherwise dismissed.

3. The costs of the Application shall be costs in the cause.

Issued by:
Delvin Sumo
Assistant Registrar
Date of issue: 16 June 2026
At: 3pm

INTRODUCTION

1. This is an Application by the Claimants under Part 28 of the RDC for the production of certain documents listed in the Claimants’ Document Production Schedule (the “Schedule”) filed in support of the Application. The Defendant opposes the orders sought

THE NATURE OF THE CLAIM

2. The issues between the parties, although extensively pleaded, can be shortly stated for present purposes. The Claimants and two other persons (the “Sellers”) sold the whole of the issued capital in a company Heaven Medical Centre LLC (the “Company”) to the Defendant pursuant to a Share Sales Agreement dated 30 May 2025 (the “SPA”).

3. Clause 9.1(a) of the SPA provided in effect that the Sellers would indemnify the Company and the Defendant in respect of any pre-completion liabilities “except any liability in respect of supplier payables set out in Part A of Schedule 11”.

4. Part A of Schedule 11 lists specific supplier payables totalling AED 2,419,121.

5. The Claimants allege that the effect of this provision was that the SPA “allocated responsibility for these specific obligations to the Company under the Defendant’s ownership and control” (Particulars of Claim, paragraph 10).

6. The Claimants allege that prior to completion the Company issued post-dated cheques signed by the Second Claimant in respect of these payments. It alleges that upon taking control of the Company the Defendant was obliged to either ensure the cheques were replaced or the Company’s accounts were adequately funded to enable them to be met.

7. The Claimants allege the Defendant has failed to take either of these steps with the result that numerous cheques, bearing the Second Claimant’s signature, are currently overdue or have fallen due without payment.

8. The Claimants, in the circumstances, seek a declaration that the supplier payables set out in Part A of Schedule 11 are not their responsibility. They also seek an order in the nature of specific performance that the Defendant take all necessary steps to replace the post-dated cheques and notify all relevant suppliers and payees that the responsibility for the Schedule 11 payments lies with the Company under the Defendant’s control.

9. The Defendant denies any liability. It alleges Schedule 11 was never finally settled. It also alleges that even if that was not the case the payments are the Company’s responsibility, not that of the Defendant.

THE PRODUCTION APPLICATION

10. The first set of documents requested by the Claimants are due diligence reports prepared by Grant Thornton, Clyde & Co, or any other advisor engaged by or on behalf of the Defendant in connection with the Defendant’s acquisition of the Company together with any exhibits, appendices, schedules or working papers annexed to or forming part of such report that relate to the Company’s supplier payables. The report is limited to documents prepared or received by the Defendant between April 2025 and 30 May 2025.

11. The Defendant contends first that the due diligence report prepared by Clyde & Co was privileged. I accept that a report by a company’s legal advisor on the outcome of a due diligence process would prima facie be privileged and there is nothing to suggest to the contrary in the present case. I would reject this request so far as it relates to that report.

12. So far as the Grant Thornton report is concerned, the Defendant submits that any documents annexed to the report are in the possession of the Claimants. However, as the Claimants’ legal representative points out in his witness statement, the report would show what Grant Thornton identified, analysed and reported to the Defendant from its consideration of the documents in the Data Room. This is relevant in circumstances where the Defendant claims that Schedule 11 had not been finally settled. If the report and its annexures were all that was ordered to be produced, I would not consider the production would be manifestly disproportionate to the issues involved.

13. However, I do not propose to grant the request so far as it extends to any other advisor. There is nothing to suggest there is such an advisor or that any material produced by such an advisor would have any relevance to the proceedings.

14. In the result I would order that the Defendant produce the report of Grant Thornton and any annexures to it. I would reject the balance of the request.

Request 2

15. These documents are relevant at least in so far as they relate to communications with the suppliers referred to in Schedule 11 of the SPA and the cheques referred to in paragraph 15 of the Particulars of Claim. It should be noted that the Defendant, in its defence, puts the Claimants to strict proof in respect of the allegations concerning these matters. It seems to me that the Defendant should be required to produce all communications whether written or oral and including electronic communications between the Defendant and the Company on the one hand and the suppliers listed in Schedule 11 of the SPA concerning the suppliers payables listed in Schedule 11 including communications concerning the cheques referred to in paragraph 15 of the Particulars of Claim.

16. I note that the Defendant asserts that there are no documents of that nature in its possession and control and any such documents as exist are in the possession, custody and control of the Company. The Claimants’ legal representative in his witness statement has identified two pieces of correspondence which he submits contradicts that assertion. In the circumstances, I would make a production order in terms of RDC 28.39 in respect of these documents.

17. I accept that it does not follow from the fact that the Defendant is the sole shareholder in the Company that the Company’s documents are in its possession, custody and control. However, if the Defendant persists in maintaining that position as presently advised I would be minded to make an order under RDC 28.51 requiring the Company to produce such documents.

Request 3

18. The request seems to be too wide and manifestly disproportionate to the matters in issue. It seems to me that the material, the subject of Requests 4 and 5, provide the Claimants with that to which they are entitled and an order of the nature of that sought in Request 3 would constitute a fishing expedition.

Request 4

19. I would grant this request in the form suggested by the Defendant. There does not seem to be any issue between the parties that this is the appropriate course.

Request 5

20. I would grant this request. It seems to me to relate to the matters directly in issue between the parties. If the Defendant takes the position that the documents are not in its possession, custody and control, once again as presently advised I would be prepared to make an order for production against the Company under RDC 28.51 if such an order was sought.

Request 6

21. This request seeks documents on the Company’s Banks’ online portal. Such documents are plainly not in the possession, custody and control of the Defendant. I would reject this request.

COSTS

22. As each party has been partially successful in the Application I would order the costs be costs in the cause.

ORDERS

23. I would make the following orders: