January 20, 2016 Practice Directions
PRACTICE DIRECTION NO. 1 OF 2016
This Practice Direction will come into effect on the date of signature. It may be cited as Practice Direction 1 of 2016 – Practitioners’ Duties to the Court – Filing of Witness Statements by Lawyers employed by Part I Law Firms and may be abbreviated to PD 1/2016.
1. This Practice Direction should be read in the light of the Mandatory Code of Conduct for Legal Practitioners in the DIFC Courts, in particular Part B – Duties Owed to the Court, paragraph 6, which provides as follows:
“Practitioners shall not appear as advocate or otherwise conduct proceedings before the Court in any matter in which they have reason to believe they may be a witness, save where any evidence they may give is likely to be purely formal or uncontroversial.”
2.1 As a general rule, law firms which are representing a party through Part I of the Register of Practitioners in proceedings before the DIFC Courts should not permit lawyers who are employed by them (“lawyers”) to file witness statements in such proceedings unless:
(a) The contents of the witness statement are formal or uncontroversial; or
(b) The witness statement has been submitted solely for the purposes of introducing documents without any factual evidence being given with regard to the merits of the case;
However, lawyers are permitted to file witness statements concerning their own personal knowledge of events happening within the context of the court proceedings after they have commenced. Even in such cases, where the lawyer’s witness statement asserts facts which are likely to be controversial, another lawyer should present the arguments relating to those facts.
(i) Exceptionally, and where the Court considers it appropriate in the circumstances, lawyers registered in Part 1 of the Register of Practitioners may be allowed to swear an affidavit, annexing the draft affidavit of their witness and undertaking to file a sworn copy of the witness’ affidavit as soon as practicable.
(ii) This may be where the first-hand witness cannot be contacted. The lawyer may then choose to file a witness statement alleging certain facts based on what has been conveyed to him, and identifying the source of that information.
2.2 All these cases above should be read as being exceptions to the general rule.
3. Where any lawyer files a factual witness statement which does not conform with 2.1 above, the Court may discount the evidentiary weight of that witness statement for lack of first-hand knowledge.
4. Where a lawyer purports to give an expert opinion in support of his/her firm’s client’s case, the Court will consider that opinion to constitute part of Counsel’s arguments and may likewise discount the opinion as expert evidence for lack of independence. However, the Court may still take the opinion into account in arriving at its decision, but relying on that opinion only as a submission.
Dated this 20 day of January 2016
Chief Justice Michael Hwang
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