Claim No: TCD 001/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ARCHITERIORS INTERIOR DESIGN (L.L.C)

Claimant

and

EMIRATES NATIONAL INVESTMENT CO (L.L.C)

Defendant

ORDER WITH REASONS OF H.E. JUSTICE MICHAEL BLACK KC

UPON the Defendant’s Application No. TCD-001-2024/2 dated 6 December 2024 seeking a Document Production Order

AND UPON the Claimant’s Application No. TCD-001-2024/3 dated 10 December 2024 seeking a Document Production Order

AND UPON the Defendant’s Application No. TCD-001-2024/4 dated 6 January 2025 seeking permission to file and serve expert reports

AND UPON Claimant’s Application No. TCD-001-2024/5 dated 8 January 2025 seeking a permission to rely on expert evidence in relation to delay and quantum

AND UPON the Defendant’s Application No. TCD-001-2024/6 dated 4 February 2025 seeking a Document Production Order

(together the “Applications”)

AND UPON a hearing held on 21 March 2025 before H.E. Justice Michael Black KC for the Document Production Order Application Nos. TCD-001-2024/2, TCD-001-2024/3, TCD-001- 2024/6 and the Expert Evidence Application No. TCD-001-2024/4 and TCD-001-2024/5 (the “Hearing”)

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

IT IS HEREBY ORDERED THAT:

1. On the Defendant’s Application No. TCD-001-2024/2 dated 6 December 2024:

2. On the Claimant’s Application No. TCD-001-2024/3 dated 10 December 2024:

3. On the Defendant’s Application No. TCD-001-2024/4 dated 6 January 2025 and the Claimant’s Application No. TCD-001-2024/5 dated 8 January 2025:

4. On the Defendant’s Application No. TCD-001-2024/6 dated 4 February 2025, the Claimant shall produce the full material submittals (including all enclosures) and all revisions (including all enclosures) which the Claimant alleges demonstrate that the Specifications were subsequently upgraded by no later than 4pm (GST) on 11 April 2025.

5. The costs of each of the Applications shall be costs in the case.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 3 April 2025
At: 2pm

INTRODUCTION

1. There are before me 5 applications:

2. Individually, such Applications would normally be dealt with by the Court on paper but given the number and interaction of the applications the Court decided to hold a hearing. The hearing was fixed for 27 February 2025 (the “Hearing”) but unfortunately counsel was unwell and the Hearing was adjourned by consent to 21 March 2025

Application No. TCD-001-2024/2

3. RDC 28.20(3) and (4) provide:

4. The Claimant accepts that it will comply with these provisions.

5. Requests Numbers 1 to 3 are as follows – for copies of:

6. The Claimant has stated that it does not possess any specific Inspection Requests issued by the Contractor to the Engineer regarding waterproofing in the Wet areas during and after the DLP (the Defects Liability Period). The Defendant says that its requests were also for Inspection Requests issued by the Contractor to the Engineer regarding waterproofing in the Wet areas before the DLP.

7. The Defendant counterclaims that “During the DLP, the Defendant identified and notified the Claimant concerning various defects to be rectified by the Claimant. However, the Claimant has failed to do so or do so adequately, thereby evidencing that it was unable or unwilling to proceed with corrective action in a reasonable time.” (paragraph 210, Defence and Counterclaim). The Claimant asserts that it “duly and properly rectified all issues brought to its notice during the DLP” (paragraph 39, Reply and Defence to Counterclaim).

8. In my judgment, the documents requested, related to the period before the DLP, are irrelevant. What matters are the defects that existed at the commencement of, or during, the DLP that were notified by the Defendant to the Claimant and not remedied.

9. Requests Number 1 to 3 are therefore refused.

10. Request Number 9 seeks:

“Any letters, notices, emails and other communications between the Claimant and the waterproofing subcontractor in relation to waterproofing defects. The Claimant is requested to search its emails with the waterproofing subcontractor, with the alternative search terms “defect” and “failure” and “sequence”.”

11. For the reasons appearing in paragraph 8 above, I consider that the documents requested are irrelevant.

12. Request Number 9 is refused.

Application No. TCD-001-2024/3

13. By Request C1, the Claimant seeks:

14. The Defendant says that the Engineer has not issued a subsequent Determination of the Claimant’s EOT Claim pursuant to clause 20.1 to the Parties. The Engineer did issue a draft Determination with which the Defendant did not agree.

15. It is for the Claimant to prove its entitlement to an Extension of Time to the satisfaction of the Court. The Engineer’s opinion in a draft determination is only that – opinion - and is not probative.

16. Request C1 is refused.

17. By Request C2, the Claimant seeks:

18. Any document request in the form “All documents related to … such as but not limited to” generally going to fail as it is neither “a description of a requested document sufficient to identify it” nor “a narrow and specific requested category of documents that are reasonably believed to exist” within the meaning of RDC 28.17.

19. Notwithstanding, the Claimant says at paragraph 53 of its skeleton argument that “The only point of contention between the parties is the delay in payment for the FCUs. The Claimant submits that the payments were delayed. The Defendant alleges that the payments were not delayed.” The Defendant says that it has already provided, and the Claimant is already in possession of, documents in relation to payment dates and delivery and this does not appear to be disputed by the Claimant. In particular, it seems to be common ground that the requested Legal Notice has been produced.

20. In oral submissions, the Claimant accepted that it had details of the delays in delivery of the FCUs and sought to expand the request to include minutes of meetings with the FCU supplier and monthly reports by the supplier to the Defendant. This is not acceptable. Any application can only be in relation to documents or classes of document already sought. It is however a tacit recognition of the inadequacy of the original request.

21. Request C2 is refused.

22. By Request C4, the Claimant seeks:

23. Paragraphs 20.12(a) to (l) of the Particulars of Claim, plead a reasonably detailed case in relation to delay in respect of issues related to the chilled water pump which was a third-party contractor’s scope and not within the Claimant’s scope.

24. While the words “All documents related to the chilled water pump issue, such as but not limited to” are far too wide. I am minded to allow Request C4 to the extent of correspondence between the Defendant and IBA (MEP Consultant), BAM (Engineer) and Johnson Control concerning leakage at the welding joint for chilled water pipe on the rooftop and decreased pressure in the chilled water pumps between 01 January 2023 to 31 August 2023.

25. By Request C5, the Claimant seeks:

26. The Claimant seeks the production of documents relating to Delay Event No. 07 – Delays due to Remaining Works by Employer’s Subcontractors, as set out in Paragraph 20.13 of the Particulars of Claim. The Claimant says that these delays resulted from the Employer’s subcontractors failing to complete their work on time, which in turn delayed the issuance of the Taking Over Certificate.

27. Paragraph 20.13 of the Particulars of Claim is lacking in any detail. Reference is made to Exhibit D pages 33 to 36. That is the Claimant’s “CONSOLIDATED EXTENSION OF TIME (EOT) AND PROLONGATION COST CLAIM”. There is no suggestion in that claim that the Claimant was lacking documents, on the contrary, it is stated on the basis of referenced documents that it was demonstrated that the subcontractors’ delays caused critical delay.

28. In the circumstances, I agree with the Defendant that the request as phrased is a “fishing expedition”.

29. Request C5 is therefore rejected.

Application No. TCD-001-2024/4

30. The parties agree that that they should each have permission to rely on the expert evidence of a Construction Delay Expert and Construction Quantum Expert.

31. The Defendant requested permission, in addition, to call an Engineering Expert in relation to defective works and waterproofing and a Rental Valuation Expert in relation to its counterclaim for loss of rental income.

32. The Claimant objects to the Engineering Expert on two grounds:

33. The Claimant objects to the Rental Valuation Expert on the grounds that:

34. The objections based on the merits of the counterclaims are misconceived. They do not amount to reasons for not permitting a party to call expert evidence – to refuse permission would be to prejudge the merits.

35. The suggestion that an Engineering Expert has reported in a different jurisdiction, subject to different rules of evidence, in a claim to which the Defendant was not a party and whom it is not suggested would be called as a witness is hopeless.

36. The suggestion that the Construction Quantum Expert can give evidence on rental values also does not bear scrutiny. A Construction Quantum Expert will not have access to, knowledge of, or the experience to assess comparables.

37. If the Claimant genuinely believes that Engineering evidence or Rental Value evidence is unnecessary, it need not call any and if it is right, it will have a strong argument on costs. I will give the Defendant permission to call an Engineering Expert and a Rental Valuation Expert and the Claimant may serve evidence in reply if so advised.

Application No. TCD-001-2024/5

38. The Claimant’s application to rely upon expert evidence in relation to delay and quantum is allowed by consent.

Application No. TCD-001-2024/6

39. The Defendant seeks an Order that the Claimant produces the full material submittals (including all enclosures) and all revisions (including all enclosures) which the Claimant alleges demonstrate that the Specifications were subsequently upgraded.

40. The Claimant responded to the Defendant’s request:

41. It is therefore hard to understand why the Claimant now objects to production. I was directed to paragraph 117 of its skeleton which says that the documents now being sought by the Defendant were originally submitted to the Engineer and the Engineer, as defined under the governing FIDIC rules, is the Employer’s representative. I was also referred to the evidence of Mr Ahmed Khayer, formerly of the Claimant, who says that he had been informed that the Claimant conducted another review of the list of the Material Submittals and noted that “most entries” do not relate to the Claimant’s claim for upgraded specifications, therefore they fall outside the scope of the Claimant’s document production.

42. As to the former point, the Defendant has stated that (as a condition of its application) that the documents are not in its control because it was not provided with all of the material submittals and revisions.

43. As to the latter point, it is unsatisfactory that a hearsay statement lacking in any detail made with no apparent means of knowledge to verify the truth is relied upon to support a party’s decision to resile from an undertaking to provide documents.

44. The Claimant must produce the full material submittals (including all enclosures) and all revisions (including all enclosures) which the Claimant alleges demonstrate that the Specifications were subsequently upgraded.

COSTS

45. Each party has enjoyed some measure of success in its Applications. It would be difficult to disentangle the costs attributable to the individual Applications. The Applications are essentially interlocutory in nature. I consider that the appropriate Order is that all costs shall be in the case.

DISPOSITION

46. The Court makes the following Orders: