DIFC Courts

CFI 020/2015 Mohammad Bin Hamad Bin Abdul Karim Al Mojil & another v Protiviti Member Firm (Middle East) Limited

April 16, 2017 court of first instance - Orders,Orders

Claim No:  CFI-020-2015

          THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

 

IN THE COURT OF FIRST INSTANCE

BEFORE H.E. JUSTICE SHAMLAN AL SAWALEHI

BETWEEN 

(1) MOHAMMAD BIN HAMAD BIN ABDUL-KARIM AL-MOJIL

(2) ADEL BIN MOHAMMED BIN HAMAD AL-MOJIL

 Claimants

and

PROTIVITI MEMBER FIRM (MIDDLE EAST) LIMITED

                                                                                                                                     Defendant

CASE MANAGEMENT ORDER OF H.E. JUSTICE SHAMLAN AL SAWALEHI

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 Claimants and Counsel for the Defendant at the Case Management Conference held before H.E. Justice Shamlan Al Sawalehi on 14 March 2017

IT IS HEREBY ORDERED THAT:

Agreed List of Issues

1.The parties shall attempt to agree a list of issues by no later than 4pm on Thursday 20 April 2017, failing which the Registry will set directions for the Court to review and determine the list of issues.

2. Adjacent to each paragraph of each witness statement, reply witness statement (if any) and skeleton argument shall be inserted the issue or issues to which that paragraph relates as numbered in the Agreed List of Issues, in order for the Court to understand to which of the agreed issues that paragraph relates.

Amendments to the Statements of Case

3. The Claimants shall provide the Defendant (in accordance with Part 18 of the RDC) its proposed amendments to the Amended Particulars of Claim dated 18 October 2016 by no later than 4pm on Sunday 9 April 2017.

4. The Claimants having provided the Defendant with its proposed Re-Amended Particulars of Claim on 9 April 2017, the Defendant shall advise the Claimants in writing whether the Defendant consents in full or in part to the proposed amendments contained in the proposed Re-Amended Particulars of Claim by no later than 4pm on Monday 24 April 2017.

5. In the event that the Defendant consents to the amendments in full, the Claimants shall file the Re-Amended Particulars of Claim by no later than 4pm on Sunday 30 April 2017.

6. In the event that the Claimants’ Re-Amended Particulars of Claim is filed with the consent of the Defendant, as contemplated in paragraph 5 above, the Defendant shall file an Amended Defence to the Re-Amended Particulars of Claim by no later than 4pm on Sunday 28 May 2017.

7. In the event that the Defendant does not consent to the Claimants’ proposed amendments by way of the proposed Re-Amended Particulars of Claim:

(a) the Claimants shall file and serve an application for permission to make further amendments to the Amended Particulars of Claim by no later than 4pm on Sunday 30 April 2017;

(b) the Defendant shall file and serve a response to the Claimants’ application by no later than 4pm on Sunday 7 May 2017;

(c) the Claimants shall file and serve any reply to the Defendant’s response by no later than 4pm on Wednesday 10 May 2017; and

(d) the Claimants’ application shall be determined by the Court without a hearing by no later than 4pm on Sunday 28 May 2017.

8. Following determination by the Court as per paragraph 7 above:

(a) the Claimants shall file and serve upon the Defendant the Re-Amended Particulars of Claim in the form permitted by the Court by no later than 4pm on Thursday 1 June 2017; and

(b) the Defendant shall file an Amended Defence to the Re-Amended Particulars of Claim by no later than 4pm on Thursday 29 June 2017.

9. In the event that the Defendant consents to the Claimant’s proposed amendments without there being a need for an application for an order to amend, the Claimants shall pay the Defendant’s reasonable and proportionate costs assessed on the standard basis connected with and arising from the Claimants’ amendments to the Amended Particulars of Claim including the Defendant’s costs in amending the Defence.

Production of Documents (RDC Part 28)

10. Standard production of documents shall be made by each party, electronically by delivery of CD or any other appropriate electronic device by no later than:

  • 4pm on Thursday, 13 July 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 17 August 2017 [if amendments are made following a Court order (para. 7)].

11. The parties shall file and serve a Request to Produce[1], if any, by no later than:

  • 4pm on Thursday, 27 July 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 31 August 2017 [if amendments are made following a Court order (para. 7)].

12. Objections to Requests to Produce, if any, shall be filed and served within 14 days following the expiry of the period described in paragraph 11 above, being:

  • 4pm on Thursday, 10 August 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 14 September 2017 [if amendments are made following a Court order (para. 7)].

13. Where any party makes an objection to any Requests to Produce[2], the Court shall determine those objections and shall make any disclosure order within 14 days following the expiry of the period described in paragraph 11 above, being:

  • 4pm on Thursday, 24 August 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 28 September 2017 [if amendments are made following a Court order (para. 7)].

14. The parties shall comply with the terms of any Disclosure Order and file a Document Production Statement within 14 days after the making of any order pursuant to any Request to Produce, being:

  • 4pm on Thursday, 7 September 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 12 October 2017 [if amendments are made following a Court order (para. 7)].

15. Where there are no objections to a particular Request contained in a Request to Produce, documents responsive to that request shall be produced within 21 days from the date of the Request to Produce, being:

  • 4pm on Thursday, 17 August 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 21 September 2017 [if amendments are made following a Court order (para. 7)].

Witness Statements (RDC Part 29)

16. Signed statements of witnesses of fact, and hearsay notices where required by the RDC shall be exchanged by no later than:

  • 4pm on Thursday, 5 October 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 23 November 2017 [if amendments are made following a Court order (para. 7)].

17. Any Witness Statement evidence in reply shall be filed and served within 4 weeks thereafter and in any event by no later than:

  • 4pm on Thursday, 2 November 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 21 December 2017 [if amendments are made following a Court order (para. 7)].

18. Unless otherwise ordered, Witness Statements shall stand as evidence in chief of the witness at trial.

Expert Reports (RDC Part 31)

19. The parties shall have permission to file and serve expert evidence by way of simultaneous exchange of written experts’ reports, with the exception of expert evidence relating to IPO pricing valuation which shall be way of sequential exchange of written experts’ reports.

20. The following Expert Reports shall be filed and served by no later than:

  • 4pm on Thursday, 30 November 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 25 January 2018 [if amendments are made following a Court order (para. 7)]

 For the Claimants:

  • Mark Hunt 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

  • Ahmad Al Khamees of Harasani & Al Khamees law firm on the Law of the Kingdom of Saudi Arabia (“Saudi Law Expert Evidence”); and

  • For the Defendants:

  • Robert Chandler of Ernst & Young by way of Forensic Accounting Expert Evidence;

  • Dr Mujahid Al Sawwaf of the Law Office of Dr. Mujahid M. Al-Sawwaf by way of Saudi Law Expert Evidence.

21. The parties shall serve Supplemental Expert Reports in relation to the Forensic Accounting Expert Evidence and the Saudi Law Expert Evidence by no later than 4pm on:

  • 4pm on Thursday, 25 January 2018 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 22 February 2018 [if amendments are made following a Court order (para. 7)].

22. The Claimants shall file and serve expert evidence from an expert to be determined 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[3] (“IPO Pricing Expert Evidence”), by no later than:

  • 4pm on Thursday, 30 November 2017 [if amendments are made by consent (para. 5)]; or

  • 4pm on Thursday, 25 January 2018 [if amendments are made following a Court order (para. 7)]

23. The Defendant shall file and serve IPO Pricing Expert Evidence by no later than:

  • 4pm on Thursday, 25 January 2018 [if amendments are made by consent (para. 5)];

  • 4pm on Thursday, 22 February 2018 [if amendments are made following a Court order (para. 7)].

24. The Claimants shall file and serve any supplemental IPO Pricing Expert Evidence by no later than:

  • 4pm on Thursday, 8 February 2018 [if amendments are made by consent (para. 5)];

  • 4pm on Thursday, 8 March 2018 [if amendments are made following a Court order (para. 7)].

25. The Defendant shall file and serve any supplemental IPO Pricing Expert Evidence by no later than:

  • 4pm on Thursday, 22 February 2018 [if amendments are made by consent (para. 5)];

  • 4pm on Thursday, 22 March 2018 [if amendments are made following a Court order (para. 7)].

26. The parties 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.

27. The DIFC Courts shall, at the Pre-Trial Review, consider what directions to give concerning a meeting and discussion between experts.

Pre-Trial Review and Progress Monitoring Hearing (RDC Part 26)

28. A pre-trial review and progress monitoring hearing shall be listed to take place at 10am on Tuesday 3 April 2018, being within the normal range of 4 to 8 weeks before trial.

29. The parties are to comply with the requirements for filing documents for the hearing listed in paragraph 28 above in accordance with Part 26 of the RDC.

Trial Bundles (RDC Part 35)

30. Agreed trial bundles shall be filed and served no later than 4 weeks before the trial commencement date.

Reading List and Trial Timetable (RDC Part 35)

31. 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)

32. Skeleton Arguments not to exceed 50 pages shall be filed and served seven clear days before the start of trial for the Claimants and five clear days before the start of trial for the Defendant.

33. 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.

Trial (RDC Part 35)

34. The trial of this matter shall be listed with an estimated duration of 3 to 4 weeks to commence at 10am on Sunday 6 May 2018.

35. Costs of the Case Management Conference shall be costs in the case.

36. The parties shall have liberty to apply.

Issued by:

Nassir Al Nasser

Judicial Officer

Date of issue: 16 April 2017

At: 4pm