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Claim No: ARB 004/2024

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

NAQID

Claimant

and

NAJAM

Defendant

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ORDER WITH REASONS OF JUSTICE RENE LE MIERE

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UPON the Order of H.E. Justice Shamlan Al Sawalehi dated 3 May 2024 (the “Enforcement Order”)

AND UPON the Freezing Order of H.E. Justice Shamlan Al Sawalehi dated 3 May 2024 (the “Freezing Order”)

AND UPON the Claimant’s Application No. ARB-004-2024/3 filed on 13 May 2024 for a writ of sequestration (the “First Sequestration Application”)

AND UPON the Claimant’s Application No. ARB-004-2024/4 filed on 13 May 2024 to refer the Defendant and its officers to the Attorney General of Dubai (the “First Committal Application”)

AND UPON the Defendant’s Application No. ARB-004-2024/5 filed on 17 May 2024 seeking to set aside the Enforcement Order and an extension of time to submit evidence (the “Set Aside Application”)

AND UPON the Defendant’s Application No. ARB-004-2024/6 filed on 23 May 2024 seeking to list a Case Management Conference to set a consolidated timetable and an extension of time to submit evidence in reply to the First Sequestration Application (the “Sequestration EOT Application”)

AND UPON the Defendant’s Application No. ARB-004-2024/7 filed on 23 May 2024 seeking to strike out the First Committal Application (the “Strike Out Application”)

AND UPON the Defendant’s Application No. ARB-004-2024/8 filed on 23 May 2024 seeking to discharge the Freezing Order and to seek an extension to submit evidence in support of the Discharge Application and a CMC (the “Discharge Application”)

AND UPON the Defendant’s Application No. ARB-004-2024/9 filed on 7 June 2024 for permission to submit an expert report in support the Set-Aside Application (the “Expert Evidence Application”)

AND UPON the Claimant’s Application No. ARB-004-2024/10 filed on 24 June 2024 for permission to issue a writ of sequestration against the assets of the Defendant (the “Second Sequestration Application”)

AND UPON the Claimant’s Application No. ARB-004-2024/11 filed on 24 June 2024 to refer the Defendant and its officers to the Attorney General of Dubai (the “Second Committal Application”)

AND UPON the Claimant’s Application No. ARB-004-2024/12 filed on 9 July 2024 seeking an antisuit injunction (the “Antisuit Injunction Application”) (the “Consolidated Applications”)

AND UPON the Defendant’s Application No. ARB-004-2024/13 filed on 9 August 2024 seeking permission to cross-examine Mr Nixon at the Hearing listed for 7 October 2024 (the “Defendant’s Application”)

AND UPON the Claimant’s Application No. ARB-004-2024/14 filed on 2 September 2024 seeking continuation of the Freezing Order

AND UPON the Defendant’s Application No. ARB-004-2024/15 filed on 16 September 2024 seeking (i) to substitute the Defendant’s cross-examination witness at the Consolidated Hearing (ii) to permit the Defendant’s witness to give evidence via an interpreter (iii) to permit the Defendant’s witness to give evidence by video link at the Consolidated Hearing

AND UPON the Order of Justice Rene Le Miere dated 25 September 2024

IT IS HEREBY ORDERED THAT:

1. The Defendant may file written evidence of Mr Narciso.

2. In so far as the evidence is in opposition to a committal application the evidence must be given by affidavit.

3. The witness statements or affidavits shall be limited to the following matters:

4. The Affidavits and witness statements shall be filed and served by 4pm on Wednesday 2 October 2024.

5. If the Defendant does not file an affidavit or witness statement of Mr Narciso, the Defendant may adduce oral evidence from Mr Narciso in opposition to the committal applications at the Consolidated Hearing.

6. If at the Consolidated Hearing, the Defendant adduces written or oral evidence from Mr Narciso, Mr Narciso may be cross examined.

7. Mr Numair may give his evidence at the Consolidated Hearing through an interpreter subject to any direction of the Court at the hearing.

8. The Defendant’s application for its witnesses to give evidence by video link at the Consolidate Hearing is dismissed.

9. The costs of the application are reserved to the Consolidated Hearing.

Issued by
Hayley Norton
Assistant Registrar
Date of issue: 26 September 2024
At: 3pm

SCHEDULE OF REASONS

Summary

1. The Defendant has applied for permission:

2. For the reasons that follow, the Court will order:

The Award to be enforced

3. In an arbitration between the Claimant and the Defendant, the arbitrator made an award dated 1 November 2023 in favour of the Claimant against the Defendant and directed the Defendant to pay the Claimant a sum of Rs. 38,58,54,542 and a sum of US Dollars 3,156,658 (the “Award”). That is approximately US Dollars 7.7 million.

The proceedings in this Court

4. On 3 May 2024 the Court made an order that the Award be recognized and enforced (the “Enforcement Order”).

5. Also on 3 May 2024, the Court made an order restraining the Defendant from removing assets from the DIFC or disposing, dealing with, or diminishing the value of assets whether they are in or outside the DIFC (the “Freezing Order”).

6. The Claimant has made two applications for orders for permission to issue writs of sequestration against the assets of the Defendant and of directors of the Defendant (the “First and Second Sequestration Applications”), two applications for orders that the Defendant and the directors be committed for contempt of court (the “First and Second Committal Applications”), an application for an antisuit injunction in relation to any dispute arising out of or in connection with the award (the “Anti-suit Injunction Application”), and an application that the Freezing Order continue until the full and final satisfaction of the judgment debt or further order of the Court (the “Continuation Application”) (together the “Claimant’s Applications”).

7. The Defendant has applied for orders setting aside the Enforcement Order (the “Set Aside Application”), striking out the First Committal Application (the “Strike Out Application”), discharging the freezing order (the “Discharge Application”), and to put on expert evidence in support of its Set Aside application (the “Expert Evidence Application”) (together the “Defendant’s Applications”).

8. On 9 August 2024 the Court ordered:

The applications now considered

9. The Defendant has applied by Application No: ARB-004-2024/15 issued on 16 September 2024 for orders for permission:

10. The Claimant opposes each of the orders sought by the Defendant.

Mr Narciso may give evidence

11. Mr Novak has submitted the following evidence in these proceedings:

12. In her Eleventh Witness Statement, Patricia Ugalde, a counsel at the firm Mayer Brown LLP, who are the legal representatives of the Defendant states as follows.

13. The evidence adduced at the Consolidated Hearing will be evidence in all the applications. The applications include contempt applications.

14. Rule 52.13 of the rules of the Dubai International Financial Centre Courts 2014 (“RDC”) requires written evidence served in support of or in opposition to a committal application to be filed unless the Court otherwise directs. However, RDC 52.14 provides that a respondent may give oral evidence at the hearing, whether or not he has filed or served any written evidence, but if he does so, he may be cross-examined.

15. In the case of a corporation, such as the Defendant, responding to a contempt application, the evidence can be given by an officer or an authorized representative of the corporation. I find it unnecessary to consider whether Mr. Narciso is an officer or an authorized representative of the Defendant because the Claimant agrees that Mr. Narciso may give evidence in answer to the committal applications against the Defendant.

16. It follows that the Defendant may adduce oral evidence from Mr. Narciso at the Consolidated Hearing, which will be evidence in all of the applications, without permission of the Court. However, that evidence would be confined to evidence relevant to the committal applications unless the Court gives permission otherwise.

17. Mr Novak’s Second Witness Statement was made in response to the Second Committal Application. Neither his First nor Third Witness Statements are directly in response to the committal applications.

18. The Court has discretion to permit a party to call additional witnesses or to substitute one witness for another, that is to call a witness in place of a witness who gave a witness statement in support of an application.

19. In Ibrahim Saad v Rasmala Investments Limited [2009] DIFC CFI 007 (November 22, 2009), Justice Williams observed:

20. The Claimant submits that it has no objection to Mr. Narciso giving fresh evidence at the Consolidated Hearing, in accordance with RDC 52.14 and 52.15, but submits he should be required to go through examination in chief and then be cross-examined.

21. The Claimant submits that Mr. Narciso cannot adopt Mr. Novak’s witness statement “in an ad-hoc manner”. At the minimum, the Claimant submits, Mr. Narciso will need to file fresh witness statements. However, the Claimant says this cannot happen now because if Mr. Narciso were to be allowed to file fresh witness statements now, then these would be significantly beyond the deadlines on which Mr. Novak filed his witness statements.

22. A witness cannot generally simply agree with or adopt the content of another witness’s statement. Each witness must provide their own account based on their direct knowledge and experience. This practice ensures that the evidence presented is reliable and genuinely reflective of each witness’s personal observations and recollections. It prevents the practice of one witness merely echoing another’s statement without stating the source of their knowledge of the facts, which could undermine the credibility and integrity of the evidence.

23. It is important that Mr. Narciso give his evidence by his own witness statement because he is to replace Mr Novak who was the principal witness for the Defendant.

24. There will be no prejudice to the Claimant if the Defendant files written evidence of Mr. Narciso before the Consolidated Hearing rather than Mr. Narciso giving oral evidence at the hearing. Indeed, if the Defendant files written evidence of Mr. Narciso that will give the Claimant and the Court notice of the evidence to be adduced from Mr. Narciso at the Consolidated Hearing.

25. Having considered the overriding objective and to deal with the case justly, I will exercise my discretion to allow Mr Narciso to give evidence at the Consolidated Hearing in place of Mr Novak, but I will not permit Mr Narciso to simply adopt the evidence of Mr Novak.

26. I note that RDC 52.12 provides that written evidence in support of or in opposition to a committal application must be given by affidavit.

27. I will give directions as follows:

28. I am conscious that this direction leaves only a short time for the Defendant to file written evidence from Mr Narciso and that Mr Narciso is ordinarily resident in Egypt. However, that should not be an insurmountable hurdle or unduly burdensome task because Mr Narciso assisted Mr Novak in preparing his witness statements, he has turned his mind to and confirmed that he has first-hand knowledge of the underlying facts in Mr Novak’s witness statements, and he was able to adopt Mr Novak’s evidence.

29. I am conscious that this direction leaves only a short time for the Claimant to review any written evidence of Mr Narciso filed by the Defendant before the start of the Consolidated Hearing. However, that should not unduly prejudice the Claimant because the evidence will be limited to the matters described in the First, Second, and Third witness statements of Mr Novak.

Mr Numair may give evidence through an interpreter

30. The Defendant submits that Mr Numair should be permitted to give his evidence through an interpreter for three reasons as follows.

31. First, this is necessary to further the overriding objective because:

32. Secondly, this would cause no prejudice to the Claimant because in its letter dated 13 September 2024 refusing to agree to Mr Numair giving his evidence through an interpreter, the Claimant did not invoke any prejudice that it would suffer if Mr Numair is permitted to give his evidence through an interpreter.

33. Thirdly, the Defendant would suffer prejudice if Mr Numair is not permitted to give his evidence through an interpreter because Mr Numair is not fluent in English. If he is (cross-)examined in English without an interpreter, there is a risk that he may not understand fully the questions being put to him, and that he may lack accuracy in answering these questions. This would cause significant prejudice to the Defendant.

34. The Claimant submits that the Defendant has failed to provide justifiable reasons for permitting Mr Numair to give evidence through an interpreter. The Claimant submits that Mr. Numair’s affidavit has been prepared in English and makes no mention of any lack of fluency in English or the need for an interpreter.

35. Mr. Numair swore an affidavit on 14 May 2024 on behalf of the Defendant in compliance with paragraph 10 of the Freezing Order providing the information about the Defendant’s assets and contracts and accounts specified in paragraph 9 of the Freezing Order. The affidavit is 10 pages long and gives substantial detail of assets, contracts and accounts. Mr. Numair verifies that the contents of the affidavit are true and correct to his personal knowledge, no part of it is false, and nothing material has been concealed. The affidavit is drafted in proficient English. There is no statement that it has been translated from a statement given in Arabic.

36. Rule 2.2 of the Rules of the Dubai International Financial Centre Courts provides that all proceedings before the Court shall be conducted in the English language. A party has no automatic right to an interpreter. However, the Court has discretion to permit a witness to give evidence through an interpreter. The Court will permit a witness to give evidence through an interpreter if it is necessary to ensure a fair hearing.

37. As a general principle, a witness should be able to give evidence through an interpreter if English is not their first language and they are not fluent in English. In her Eleventh Witness Statement Ms Ugalde states that Mr Numair speaks English, but he is not fluent in English. In her Thirteenth Witness Statement Ms Ugalde says that Mr Numair speaks two languages but is much more fluent in Arabic than in English, and his preference to converse in Arabic during (cross)examination is reasonable given the unique stress and unfamiliar surroundings that witnesses experience during court proceedings.

38. In Gholizadeh v Sarfraz [2021] EWHC 2814 (Ch), the High Court of England considered an appeal of a decision made at trial refusing an interpreter. The need for an interpreter to assist a witness only became apparent (at least to the court) during the trial. The matter had not been raised with the court before trial and there was nothing in the witness statement to suggest that it had been made in anything other than English and there was no certificate that it had been translated from any other language. On the appeal, the court held that the lower court's refusal to allow an interpreter during a remote trial was a procedural irregularity.

39. Mr Justice Miles said:

40. It can be more challenging for a judge to assess the evidence of a witness given through an interpreter. Interpreters may not always capture the full nuance of a witness’s testimony. When testimony is filtered through an interpreter, it can be harder to gauge the witness’s sincerity and truthfulness. The accuracy of the interpretation itself can be a concern. Misinterpretations, even if minor, can affect the judge’s understanding of the evidence.

41. The use of an interpreter generally makes court proceedings longer. Everything said in court needs to be translated both ways -questions from the court to the witness and responses from the witness to the court. Interpreters may need to ask for clarifications to ensure accurate translation, which can add to the time. The pace of the proceedings is slower to accommodate the interpretation process, ensuring that all parties fully understand the testimony and questions

42. I will give permission for Mr. Numair to give evidence through an interpreter because English is not his first language, he is not fluent in English, he wishes to give evidence through an interpreter, and it is necessary to ensure a fair hearing.

43. However, the Court will maintain control over the evidence. If it becomes apparent during the hearing that Mr. Numair can understand and speak English sufficiently to enable him to understand, and adequate reply to questions put to him in English and it would better enable the Court to assess Mr. Numair’s evidence and make the court process more efficient, the Court may require Mr. Numair to give evidence without an interpreter, or to only use the interpreter when he cannot understand a question sufficiently to make adequate reply to the question put to him.

44. I will order that Mr Numair may give his evidence at the Consolidated Hearing through an interpreter subject to any direction of the Court at the hearing.

45. The Defendant has approached an interpreter, Mr Naafi to act as interpreter at the hearing. There is no evidence that Mr Naafi is not impartial or not independent of the parties. However, I am not presently satisfied that Mr Naafi is a suitably qualified interpreter as distinct from a translator. Mr Naafi’s CV says he is “Sworn/Certified Legal Translator, UAE Ministry of Justice”, not a certified interpreter. His education appears to be as a translator not an interpreter. His experience appears principally, if not wholly, to be as a translator not an interpreter.

46. Court interpreters need to have specific certifications or qualifications. Interpreters should have experience in legal settings. This includes proficiency in consecutive and simultaneous interpreting, as well as sight translation. Court interpreting requires skills beyond those of a translator. Interpreters must be able to handle the fast-paced and high-stakes environment of a courtroom, accurately conveying not just the words but also the tone and intent of the speakers.

47. If the Defendant wishes Mr Naafi to act as interpreter at trial, it will have to satisfy me that Mr Naafi is a suitably qualified and experienced interpreter. Alternatively, the Defendant may make another suitably qualified, independent, and impartial interpreter available at the hearing.

Claimant’s witnesses give evidence by video link

48. The Defendant submits it should be granted permission to give witness evidence by video link for three reasons as follows.

49. First, the requested permission is warranted to further the overriding objective because:

50. Secondly, the requested permission would cause no prejudice to the Claimant because

51. Thirdly, the Defendant would suffer prejudice if the requested permission is denied because the Defendant would incur unreasonable additional costs for its witnesses' in-person attendance at the Consolidated Hearing. Such additional costs are unnecessary in circumstances where the Claimant's preference, communicated at the Directions Hearing, was for its witness to give evidence remotely precisely to avoid incurring unnecessary costs in these proceedings.

52. Priyanshi Vakharia, a counsel at Singularity Legal LLP, the legal representatives of the Claimant, made her Third Witness Statement on behalf of the Claimant in opposition to the Defendant’s application.

53. Ms Vakharia says the Claimant was proceeding on the basis that the hearing would be conducted remotely, and it was the Defendant’s counsel’s insistence on an in-person hearing which led to the Court ordering an in-person hearing.

54. Ms Vakharia says that the record is voluminous and cross-examination of all witnesses will take around 2-3 days and the reasons stated at the directions hearing by the Defendant’s counsel in support of an in-person hearing apply to the witnesses. Those reasons are

55. The Claimant submits that the benefits of an in-person hearing would be severely undermined if witness evidence were to be taken remotely. It would serve no purpose for both parties’ lawyers and for the Judge to be physically present at the hearing, if the witnesses were themselves not present.

56. In the event the Court permits the Defendant’s witnesses to give evidence remotely, the Claimant requests that witnesses are dealt with on an even-handed basis and that the Claimant’s witness also be permitted to give evidence remotely, to ensure equality of arms.

57. In her Thirteenth Witness Statement Ms Ugalde says that while the Defendant’s position at the Directions Hearing was that an in-person hearing was required due to the number of applications and issues before the Court, it indicated, at the Directions Hearing, in its Cross-examination Application, and in Mayer Brown's letter to Singularity dated 10 September 2024, that it would be content for the fact witnesses to attend the Consolidated Hearing and to give their evidence remotely.

58. The Defendant denies that it would serve no purpose for both parties' lawyers and for the Judge to be physically present at the hearing, if the witnesses themselves are not present. The Defendant says that even if the parties' witnesses are to give their evidence remotely, holding the Consolidated Hearing at least partially in person would be beneficial because

59. The Defendant says both parties would incur unreasonable additional costs if their witnesses, who are not based in Dubai, have to attend the Consolidated Hearing in person. Such additional costs are unnecessary in circumstances where the Claimant's preference, communicated at the Directions Hearing, was for the Consolidated Hearing to be held remotely and for witnesses to give their evidence remotely precisely to avoid incurring unnecessary costs in these proceedings.

60. I will not dwell on the parties’ previous positions and the reasons for any change of position.

61. The DIFC Court is an international court. Practical Guidance Note No. 1 of 2023 DIFC Courts’ Virtual Hearing and Bundling Protocol provides that save where permission is obtained and given by the Court, all hearings will be held on a remote basis.

62. The Court gave permission for the hearing to be held in-person because of the number of applications and issues before the Court and the voluminous record.

63. At the time of making the order the Court did not determine or indicate that witnesses would be permitted to give evidence remotely. To the contrary, the Court directed that any party may apply for the Court to allow a witness to give evidence remotely.

64. Where, as here, the hearing is to take place in the DIFC Court courtroom, a witness is to give evidence in person unless the Court permits them to give evidence by video link.

65. When deciding whether to allow a witness to give evidence by video conference, the Court will consider the overriding objective of enabling the Court to deal with the case justly. Dealing with the case justly includes, so far as is practicable:

66. The only consideration advanced by the Defendant for allowing its witnesses to give evidence remotely is to save expense.

67. The Defendant has led no evidence of the expense that would be saved by its witnesses giving evidence remotely.

68. It appears that the Defendant will, or may, lead evidence from the following witnesses:

69. There will be no significant travel or accommodation expenses saved by Mr Numair and Ms Ugalde giving evidence by video link.

70. There would be some expense saved by Mr Narciso and Mr Nyoka giving evidence by video link, but there is no evidence of the amount that would be saved.

71. It is relevant to consider the importance and nature of the issues, the significance of the matter being determined and whether it necessitates in-person testimony.

72. The applications include two applications that the Defendant and its directors be committed for contempt. That factor points towards having witnesses give evidence in person due to the serious nature of such proceedings, if it is practicable and not disproportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party.

73. Committal for contempt can result in severe consequences, including imprisonment, which underscores the need for a thorough and fair hearing. Mr Narciso will be the principal witness for the Defendant. The credibility of Mr Narciso will be important, and in-person testimony may allow the court to better assess his credibility.

74. There is less reason for insisting on Mr Nyoka giving evidence in person. But there is not a separate application in relation to Mr Nyoka, and the parties have not addressed the question of whether Mr Nyoka, as distinct from all the Defendant’s witnesses should be permitted to give evidence remotely. I am not in a position to consider separately whether Mr Nyoka should be permitted to give evidence remotely.

75. The witnesses giving evidence in the DIFC Court courtroom is not disproportionate to the amount of money involved, the importance of the case, and the complexity of the issues.

76. There is some evidence that the Defendant’s financial position is strained but there is no evidence that it does not have the means to pay for its witnesses to attend the hearing in person. It is relevant that the Defendant pressed for the Consolidated Hearing to be in person.

77. Considering all the circumstances I am not satisfied that I should exercise my discretion to allow the Defendant’s witnesses to give evidence by video link. While video conferencing offers some cost saving, there is no evidence of the amount of the saving, and the nature and complexity of the hearing and the importance of witness testimony makes an in-person hearing more efficient.

Costs

78. The appropriate costs order is that the costs of the application are reserved to the Consolidated Hearing for three reasons.

79. First, the result of the application is mixed. Each party has succeeded and failed in part.

80. Secondly, the application is in a sense a continuation of the directions hearing and in the nature of case management.

81. Thirdly, the justice of how the costs should be borne can be better assessed after the Consolidated Hearing.