August 01, 2022 COURT OF FIRST INSTANCE - ORDERS
Claim No. CFI 005/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) ANOOP KUMAR LAL
(2) PAUL PATRICK HENNESSY
Claimants
and
DONNA BENTON
Defendant
ORDER OF JUSTICE LORD ANGUS GLENNIE
UPON reviewing the Claimants’ Application No. CFI-005-2021/9 dated 15 July 2022 pursuant to Part 16 of the Rules of the DIFC Courts (the “Claimants’ Application”)
AND UPON reviewing the Defendant’s evidence in answer to the Claimants’ Application dated 26 July 2022
AND UPON reviewing the Defendant’s Application No.CFI-005-2021/10 dated 21 July 2022 to strike out the Claimants’ expert report of Mr Maxime Girard dated 14 July 2022 (the “Expert Application”)
AND UPON reviewing the Claimants’ evidence in answer to the Expert Application dated 25 July 2022
AND UPON reading the Claimants’ skeleton argument dated 28 July 2022
AND UPON reading the Defendant’s skeleton argument dated 28 July 2022
AND UPON reading the Claimants’ Statement of Costs dated 28 July 2022
AND UPON reading the Defendant’s Statement of Costs dated 28 July 2022
AND UPON hearing Counsel for the Claimants and Counsel for the Defendant at the Pre Trial-Review on 29 July 2022
IT IS HEREBY ORDERED THAT:
1. No order is made on the Claimants’ Application.
2. So far as concerns the Expert Application:
(1) The expert report of Maxime Girard dated 14 July 2022 is deemed not filed.
(2) The Claimants are permitted to file an expert report limited to issues of quantum and loss within 10 days of today’s date.
3. The Claimants shall pay the Defendant’s costs of and occasioned by preparation and service on the Defendants of the expert report of Maxime Girard and also of the Expert Application, to be assessed by the Registrar on the standard basis, if not agreed. Otherwise, costs in the case in relation to the Pre Trial-Review.
4. The dates presently fixed for the Trial of this action, viz 22 and 23 September 2022, are discharged. The Trial shall be re-listed for 3 days from 14 November 2022 with 17 November 2022 held in reserve to be used if needed.
5. The trial shall be conducted remotely via Teams link. Except as otherwise ordered, the Court shall sit from 11am until 5pm UAE time on sitting days.
Issued by:
Nour Hineidi
Registrar
Date of issue: 1 August 2022
At: 2.30pm
REASONS
1. I am satisfied that the Report of Maxime Girard very largely goes to issues for which permission was not sought or obtained. Rather than attempting to re-draft that Report or excise passages in contested proceedings, the best course is to refuse permission to rely on that Report, leaving it open to the Claimants to file a Report on quantum and loss within 10 days if so advised.
2. It is apparent that there is uncertainty as to what is and what is not presently part of the parties’ respective claims. I take the view, consistently with the Rules of Court, that it is legitimate by witness statement or other document filed in court to give further particulars of a claim or defence already advanced in the formal pleadings, i.e. in the Particulars of Claim or Defence in their initial or amended form. However, it is not legitimate in witness statements or other documents to raise other claims or lines of defence which do not appear within those formal pleadings. If such new claims or defences are to be taken into account at trial, they must be reflected in amended pleadings for which permission to amend has been applied for and granted by consent or otherwise.
3. In this case a failure to observe this clear and obvious rule has led to uncertainty as to what is in issue in the case and what is not part of the issues to be determined at trial. Without seeking to attribute blame or responsibility to either party in particular, I should make it clear that this is entirely unsatisfactory.
4. So that there is no room for doubt when it comes to trial in this case, I propose at trial to proceed upon the basis that the pleadings are the pleadings are the pleadings and those pleadings define and delimit the scope of the trial. Anything raised in witness statements or other documents which does not bear in some relevant way on a pleaded issue will be disregarded. This is, of course, without prejudice to the right of either or both parties to apply to the court in the usual way for permission to amend their pleadings. Indeed, in case of doubt as to whether something is in or out, I would encourage this course.
