December 09, 2022 Practice Directions
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
PRACTICAL GUIDANCE NOTE No. 1 of 2022
MATTERS TO BE CONSIDERED AT CASE MANAGEMENT CONFERENCE IN A DEC CLAIM
1. This Practical Guidance Note will come into effect on 09 December 2022. It may be cited as “Practical Guidance Note 1 of 2022 – matters to be considered a case management conference in a DEC Claim” and may be abbreviated to PGN 1/2022.
Active Case Management
2. Cases in the Digital Economy Court will be actively case managed. If the Court considers that the case is suitable for the Digital Economy Court, it will normally give directions and set a timetable up to and including a trial date at the First Case Management Conference. The Court may also fix the dates of further Case Management Conferences and a Pre-Trial Review.
3. The Court may explore whether Early Neutral Evaluation (“ENE”) may assist in resolving the dispute (see paragraph 27 below).
4. Consideration will be given to whether the case should be managed by the same judge throughout.
5. There follows a non-exhaustive list of matters that the Court will also consider at any Case Management Conference in a DEC Claim in addition to those listed in Rule 26.35. In addition, the parties should have regard to the questions raised in Schedule A to Part 26.
6. Whether there is a dispute as to the jurisdiction of the Digital Economy Court and the manner in which the dispute should be determined.
7. If the Court makes an order containing a declaration that the Court has no jurisdiction or will not exercise its jurisdiction, whether it should also make further provision including:
a. setting aside the claim form;
b. setting aside service of the claim form;
c. discharging any order made before the claim was commenced or before the claim form was served; or
d. staying the proceedings.
8. Whether the claim is suitable for the Digital Economy Court.
Applicable Laws and Regulations
9. Identity of applicable law and regulations.
10. Whether any issues of commercial or technical confidentiality arise.
11. If so, whether consideration should be given to procedures such as:
a. The imposition of a Confidentiality Ring whereby disclosure of identified Confidential Information shall be limited to the Court, Counsel, the parties’ Experts, transcribers and interpreters and/or identified representatives of the parties;
b. Information claimed to be confidential shall be submitted to an independent and impartial expert appointed by the Court and bound by confidentiality to review any such information and to report on the claim to confidentiality to the Court;
c. Whether material identified as confidential shall be segregated from other evidence and be reviewed only by persons in the Confidentiality Ring and access to any pleadings and submissions, experts’ reports or other documents making reference to the Confidential Information shall be similarly restricted;
d. Whether any pleadings and submissions, experts’ reports or other documents making reference to the Confidential Information shall be made available to those outside the Confidentiality Ring in redacted form;
e. Whether when reference to the Confidential Information is to be made in any hearing, the hearing shall be in private and any record of the hearing shall be confidential and may only be accessed by those within the Confidentiality Ring or in redacted form;
f. The extent (if any) to which any judgment or order should ensure protection of Confidential Information.
12. Whether any non-parties have an interest in the subject matter of the dispute and should be joined to the DEC Claim including, in relation to digital assets, any person who has digitally signed that asset or who claims to own or control it through possession or knowledge of a digital key, or any present or former third party custodian of digital assets the subject of the proceedings.
Statements of Case
13. Whether Statements of Case are necessary or (for example) whether the parties are able to agree a joint statement of facts agreed and not agreed with supporting documents and file individual statements limited to the facts not agreed with supporting evidence.
14. If Statements of Case are necessary - their timing, form, and contents.
15. Whether document production is necessary.
16. In any event a party will not be required to produce any documents which it has previously produced in pre-action correspondence or during the proceedings.
17. If document production is necessary, what form it should take.
18. Whether the procedure in Part 28 should apply or whether it should be modified in whole or in part. In particular the Court will consider whether to order production only in respect of specific issues, by reference to the list of issues prepared in accordance with Rule 58.29.
19. Examples of alternative procedures include the following:
a. Parties to give Initial Production of documents by no later than 14 days before the date fixed for the first Case Management Conference. Initial Production means that a party must produce, to all other parties, copies of:
i. the key documents on which it relies in support of the claims or defences advanced in its statement of case (including the documents referred to in that statement of case); and
ii. the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.
b. Parties to produce:
iii. known adverse documents. A known adverse document is a document which a party is aware is within its possession or control (without undertaking any further searches for documents than it has already undertaken or caused to be undertaken) and is adverse. A document is adverse if it or any information it contains contradicts or materially damages the producing party’s contention or version of events on an issue in dispute or supports the contention or version of events of an opposing party on an issue in dispute.
iv. any further documents on which a party relies, or which are necessary to enable the other parties to understand the claim or defences advanced.
c. Unless the Court orders otherwise, a party is not required to search for adverse documents. If a party carries out a search for documents in order to comply with a document production request or for any other reason and discovers an adverse document, the party must produce the adverse document.
d. Parties are under a continuing duty to produce adverse documents to all other parties. If, at any time after an order for document production has been made, a party becomes aware of an adverse document in its possession or control, it must produce that document to the other parties.
e. A party’s obligations to produce documents, including adverse documents, remain subject to Rules 28.20 to 28.30 (grounds for excluding documents from production).
20. Whether any directions are required for production of digital data under Part 28.
21. Whether any directions are required for a technology assisted or artificial intelligence assisted review of documents.
22. Whether any directions are required to facilitate the presentation of digital data, models, or other digital information to the Court, including by making such material available to the Court in a digital or other native format.
23. Whether any party has any application for interim remedies or security for costs that may be made at the First Case Management Conference or subsequently.
24. Whether any claim, part of a claim or particular issue is suitable for immediate judgment under Part 24.
25. Whether any of the provisions of Parts 23 and 24 should be modified in respect of applications made in the claim.
Alternative Dispute Resolution
26. Whether provision for Alternative Dispute Resolution should be made in Trial Timetable.
27. ENE is a without-prejudice, non-binding, evaluation of the merits of a dispute or of particular issues in dispute, given after time-limited consideration of core materials and having read or listened to concise argument. It is designed to take place in private at an early stage in a dispute.
a. ENE may be provided by appropriate third parties or, in an appropriate case if agreed by all parties, by one of the Judges of the Court. The approval of the Chief Justice must be obtained before any ENE is undertaken by a Judge.
b. Where the evaluation is undertaken by a Judge, only brief, informal reasons will be provided, usually expressed orally.
c. Where ENE by a Judge of the Court is sought by the parties and approved by the Chief Justice:
i. The Chief Justice will nominate the Judge who will conduct the ENE.
ii. The nominated Judge will give directions for the preparation and conduct of the ENE.
iii. The Judge who conducts the ENE will take no further part in the case, at any stage, unless the parties agree otherwise
28. Whether any issues in the claim are capable of determination without a hearing.
29. Date of Trial – the Court will normally fix the trial date at or shortly after the First Case Management Conference. Once a trial date has been fixed it will not be vacated save and except in exceptional circumstances.
30. Whether the Court should appoint one or more Court-appointed experts under Rule 31.29 or appoint one or more assessors under Rule 31.70 in addition to granting permission for expert evidence under Rule 31.13.