February 07, 2018 court of first instance - Orders
Claim No: CFI-020-2015
DUBAI INTERNATIONAL FINANCE CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) MOHAMMAD BIN HAMAD BIN ABDUL-KARIM Al-MOJIL
First Claimant
(2) ADEL BIN MOHAMMAD BIN HAMAD AL-MOJIL
Second Claimant
-and-
PROTIVITI MEMBER FIRM (MIDDLE EAST) LIMITED
FURTHER AMENDED CASE MANAGEMENT ORDER OF DEPUTY CHIEF JUSTICE SIR DAVID STEEL
UPON reviewing the Court file
AND UPON reading the Case Management Bundle
AND UPON reviewing the Rules of the DIFC Courts (“RDC”)
AND UPON hearing Counsel for the Claimant(s) and Counsel for the Defendant(s) at the Case Management Conference held before H.E. Justice Shamlan Al Sawalehi on 14 March 2017
AND UPON the parties having submitted agreed amendments to the Case Management Order of H.E. Justice Shamlan Al Sawalehi dated 16 April 2017 following the amendments to the statement of case
AND UPON the parties having submitted further agreed amendments to the Case Management Order of H.E. Justice Shamlan Al Sawalehi dated 22 May 2017 following the filing of signed statements of witnesses of fact
AND UPON the Claimants’ application made by Application Notice dated 10 January 2017 (“the Claimants’ Application”) seeking to strike out and/or exclude from evidence those parts of the witness statements served on behalf of the Defendant which make reference to MML (“the MML evidence”)
AND UPON hearing Counsel for the Claimant(s) and Counsel for the Defendant(s) at the Case Management Conference held before Deputy Chief Justice Sir David Steel on 15 January 2018
AND UPON the parties agreeing dates for completion of further steps subsequent to the Case Management Conference
IT IS HEREBY ORDERED THAT:
The Claimants’ Application
1.The Claimant’s Application is reserved to the trial judge.
2. Costs of the Claimant’s Application are reserved to the trial judge.
3. The Claimants have permission to serve a supplemental witness statement from the Second Claimant responding to the MML evidence, if so advised, by 4pm on 5 February 2017.
Expert Reports (RDC Part 31)
4. The following Expert Reports shall be filed and served by no later than 4pm on 15 February 2018:
a) For the Claimants:
i) David Eastwood of FTI on forensic accounting evidence as to the professional and ethical standards applicable to the engagement and accounting for fixed assets and construction contracts and the alleged faults in the Defendant’s Report to the CMA ("Forensic Accounting Expert Evidence”); and
ii) Ahmad Al Khamees of Harasani & Al Khamees law firm on the Law of the Kingdom of Saudi Arabia ("Saudi Law Expert Evidence”).
b) For the Defendant:
i) Robert Chandler of Ernst & Young by way of Forensic Accounting Expert Evidence; and
ii) Dr Mujahid Al Sawwaf of the Law Office of Dr. Mujahid M. Al-Sawwaf by way of Saudi Law Expert Evidence
5. The Claimants shall file and serve, by no later than 4pm on 21 January 2018, expert evidence from Stuart Amor of FTI on whether the share price calculation presented in the Defendant’s Report to the CMA was consistent with the methodology that had been used by HSBC for the original IPO valuation or was a methodology that would have been applied by an IPO valuation specialist if calculating a share price on the basis of the information used by the Defendant[1] (“IPO Pricing Expert Evidence”).
6. The Defendant shall file and serve IPO Pricing Expert Evidence from Jagdeep Singh Kang of Pacifica Consulting LLC by no later than 4pm on 22 February 2018.
7. There shall be a meeting between the parties’ experts to take place on or before 1 March 2018 in the case of the Forensic Accounting Experts and the Saudi Law Experts, and to take place before 8 March 2018 in respect of the IPO Pricing Experts for the purpose of identifying areas of agreement and areas of disagreement between them. Following such meetings:
a. the Experts shall produce a brief joint memorandum identifying the issues on which they agree and the issues on which they disagree, to be produced by no later than 15 March 2018 in respect of the Forensic Accounting Experts and the Saudi Law Experts, and by no later than 22 March 2018 in respect of the IPO Pricing Experts; and
b. if so advised, the parties shall serve Supplemental Expert Reports no later than 4pm on 29 March 2018 in respect of the Forensic Accounting Experts and the Saudi Law Experts, and by no later than 29 March 2018 in respect of the IPO Pricing Experts.
8. The Claimants and the Defendant shall have permission to call the experts providing Forensic Accounting Expert Evidence, Saudi Law Expert Evidence and IPO Pricing Expert Evidence to give evidence at trial.
Pre-Trial Review and Progress Monitoring Hearing (RDC Part 26)
9. A pre-trial review and progress monitoring hearing shall be listed together to be heard at 10am on 3 April 2018.
10. The parties are to comply with the requirements for filing documents for the hearing listed in paragraph 9 above in accordance with Part 26 of the RDC.
Trial Bundles (RDC Part 35)
11. Agreed trial bundles shall be filed and served no later than 4pm on 8 April 2018.
Reading List and Trial Timetable (RDC Part 35)
12. An agreed reading list for trial along with an estimate of time required for reading and an estimated timetable for trial shall be filed with the Court by the Claimants no later than seven clear days before trial.
Skeleton Argument and Chronology (RDC Part 35)
13. Skeleton Arguments not to exceed 75 pages shall be filed and served seven clear days before the start of trial for the Claimant and five clear days before the start of the trial for the Defendant.
14. The parties shall prepare an agreed Chronology of significant events cross-referenced to significant documents, pleadings and witness statements which shall be filed with the Court by the Claimants five clear days before the start of the trial. In the event that there are areas of disagreement, the Chronology shall include an agreed Chronology and a Chronology of events which are disputed, with the parties’ respective positions outlined therein.
15. The parties shall cooperate in preparing a Core Bundle, to be lodged no later than 7 clear days before the start of the trial.
Trial (RDC Part 35)
16. The trial of this matter shall be listed with an estimated duration of 4 weeks to commence at 10am on Sunday 6 May 2018.
17. The Second Claimant has permission to give oral evidence at trial by way of video link.
18. Costs of the Case Management Conference shall be costs in the case.
19. The parties shall have liberty to apply.
Issued by:
Nassir Al Nasser
Judicial Officer
Date of issue: 7 February 2018
At: 10am
