March 06, 2019 court of first instance - Orders
Claim No: CFI-026-2017
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BEFORE JUSTICE SIR RICHARD FIELD
BETWEEN
TAVIRA SECURITIES LIMITED
and
(1) RE POINT VENTURES FZCO
(2) JAI NARAIN GUPTA
(3) MAYANK KUMAR
(4) SAROJ GUPTA
Defendants
ORDER OF JUSTICE SIR RICHARD FIELD
UPON the Pre-Trial Review ordered by the Court under The Rules of the DIFC Courts (“RDC”) Part 26.72
AND UPON the Claimant’s Application by Notice dated 13 February 2019 for an Order under RDC, Part 29.14 allowing its witnesses to give evidence through a video link at the trial fixed to begin on 17 March 2019
AND UPON the Claimant proposing amendments to paragraphs 8, 15, 39, 42(a), 45.1 and 48.1 of the Particulars of Claim dated 8 February 2018 and to paragraph 20.3 of the Reply dated 4 September 2018
AND UPON the Claimant having consented to certain amendments to the Defence dated 8 August 2018 (the “Agreed Amendments to the Defence”) by letter of its solicitors (Fletcher Day, 110 Cannon Street, London EC4N 6EU) to the Defendant’s legal representatives (KBH Kaanuun, Dubai International Financial Centre, Gate Village 7, Level 2, P.O. Box 506546, Dubai, UAE) dated 27 January 2019
AND UPON hearing the Counsel for the Claimant (Mr Paul Greenwood and Ms Lara Hassell-Hart) by telephone and Counsel for the Defendants (Ms Bushra Ahmed)
AND UPON the Court reading the Pre-Trial Review Bundle
IT IS HEREBY ORDERED THAT:
Statements of Case
1.Pursuant to RDC Part 18.2(2), the Claimant is granted permission to amend paragraphs 8, 15, 39, 42(a), 45.1 and 48.1 of its Particulars of Claim dated 8 February 2018 in the manner set out in the draft Amended Particulars of Claim included in the Pre-Trial Review Bundle (and sent to the Defendants on 10 February 2019) with the Amended Particulars of Claim to be filed and served by no later than 4pm on 19 February 2019.
2. The Defendants have permission, if so advised: (i) to make amendments to their Defence dated 8 August 2018 consequential upon the amendments to the Particulars of Claim permitted under paragraph 1 above; and (ii) to make the Agreed Amendments to the Defence, with all such amendments to be comprised in an Amended Defence to be filed and served no later than 7 days after service of the Amended Particulars of Claim, and in any event no later than 4pm on 26 February 2019.
3. The Claimant shall have permission, if so advised: (i) to make amendments to its Reply dated 4 September 2018 consequential upon the amendments to the Defence made in accordance with paragraph 2 above; and (ii) to amend paragraph 20.3 of the Reply in the manner set out in the draft Reply included in the Pre-Trial Review Bundle (and sent to the Defendants on 10 February 2019), with all such amendments to be comprised in an Amended Reply to be filed and served no later than 4 days after service of the Amended Defence, and in any event no later than 4pm on 2 March 2019.
4. The parties shall bear their own costs of making the permitted amendments.
Document Production
5. The Claimant shall carry out a reasonable search for any documents in its possession, custody or control (and shall, subject to Part 28.28 of the RDC, produce to the Defendants any such documents thus identified by no later than 6pm on 22 February 2019) falling within any of the following categories:
a. any contract/s pursuant to which Andrew Hawgood (“AH”) was providing services to the Claimant and/or Tavira Monaco SAM as at 12 October 2015.
b. any document/s demonstrating how AH was paid in respect of such services, including payslips and/or invoices rendered by AH and/or proof of payment and/or evidence of bank transfers to AH.
c. any document/s containing any regulatory authorisation of AH by the Financial Conduct Authority to deal with the First Defendant in October 2015.
6. The Defendants’ application for a production order in respect of the following categories of document is refused:
a. disclosures made to HMRC by the Claimant in respect of AH’s tax position.
b. the Claimant’s policy and procedures applicable in October 2015 to onboard the First Defendant.
c. the Claimant’s policies and procedures applicable in October 2015 in respect of opening an account.
d. the Claimant’s policies and procedures applicable in October 2015 to ascertain the categorisation of the First Defendant and to notify the First Defendant of its categorisation.
e. the Claimant’s policies and procedures applicable in October 2015 in respect of countering the risk of financial crime and money laundering.
f. the Claimant’s Best Execution Policy.
g. the Claimant’s Client Order Handling Policy.
Witness Statements and Evidence
The Witness Statement of Marco Saviozzi
7. Pursuant to RDC, Part 29.9, the Defendants are not entitled in these proceedings to rely on the Witness Statement of Marco Saviozzi dated 28 January 2019.
The Authenticity of Documents
8. By no later than 6pm on 22 February 2019, the Defendants shall, if so advised, serve on the Claimant a concise list of those documents (if any) in respect of which the Defendants have a well-founded and genuine suspicion of inauthenticity and which they would therefore wish the Claimant to prove at trial (the “Notice to Prove”).
9. The Claimant shall respond to the Notice to Prove by no later than 6pm on 26 February 2019, with such response to be copied to the Registry, and the Defendants shall respond to the Claimant’s response by no later than 6pm on 1 March 2019, with such response also to be copied to the Registry.
10. If, following that exchange of responses, there are issues between the parties in respect of and/or arising out of the Notice to Prove (and if requested by the parties in writing to do so) Justice Sir Richard Field will adjudicate (in advance of the trial) upon those issues and/or whether and if so by what means and on what occasion they are to be resolved.
The Claimant’s Application for Permission to Use Video Links
11. Pursuant to its Application dated 13 February 2019, the Claimant has permission under RDC, Part 29.14 allowing Timothy Barba, Nigel Brahams, Charles Craig, Andrew Eicher, Nikos Tsaganelias and Omar Ulrich to give oral evidence at trial by way of video link.
12. The Claimant’s application for permission to allow Eliot Goodfellow to give evidence by way of video link is adjourned for ten days to allow for the parties to agree to a suitable undertaking to be given by the Defendants in respect of facilitating his attendance at the trial in Dubai. If nonetheless no agreement is reached concerning his attendance, then the Claimant has permission to restore its application for permission, and in that respect, the Claimant and the Defendants shall make concise written submissions to Justice Sir Richard Field for adjudication by no later than 4pm on 4 March 2019.
Interpreter
13. Pursuant to the Defendants’ request for the use of an interpreter at trial, the Fourth Defendant has permission to give her evidence through an interpreter.
14. The Defendants are to provide the name and CV of an interpreter to the Registry and to the Claimant by 28 February 2019.
15. If the Claimant objects to the proposed interpreter, the Claimant will write to the Defendants, copying the Registry, setting out the reasons for its objections and proposing a different interpreter, by no later than 4pm on 4 March 2019.
16. In the event the Claimant does not object in accordance with paragraph 15 above, the Registry will approve the proposed interpreter and the appropriate arrangements will be made.
17. If the Claimant objects to the proposed interpreter in accordance with paragraph 15, the Defendants will, by no later than 4pm on 7 March 2019, either (i) agree to the Claimant’s proposed interpreter, or (ii) propose two further names for the Claimant’s agreement, by writing to the Claimant copying in the Registry.
18. If the Defendants propose two further names in accordance with paragraph 17(ii) above, the Claimant will, by no later than 4pm on 10 March 2019, indicate whether it agrees or disagrees with the Defendants’ proposals by writing to the Defendants copying in the Registry.
19. In the event agreement cannot be reached by 4pm on 10 March 2019, the Registry will proceed to approve an interpreter and the appropriate arrangements will be made.
Preliminary issue
20. The Defendants’ application for the hearing of a preliminary issue in respect of the applicability in this case of Article 40(2) of the Law of Damages and Remedies (DIFC Law No. 7 of 2005) is refused, on the basis that this issue will be determined at trial.
Trial
21. Each of the Claimant and Defendants shall inform the Registry by no later than 4pm on 25 February 2019 whether or not they agree to the use of LiveNote (or similar transcript software) at trial and to the cost of that facility being shared equally between the Claimant (as to one half) and the Defendants (together, as to the other half).
22. Directions for written closing submissions shall, if necessary, be given at trial.
23. The parties are to agree a trial timetable, including the order of evidence for the witnesses, bearing in mind the Court sitting hours of 9.30am – 5pm with a lunch break of 1 hour from 1pm – 2 pm and a short break in the morning and afternoon, by no later than 4pm on 4 March 2019, failing which Justice Sir Richard Field will impose a timetable for trial on the parties.
24. The parties shall have liberty to apply.
Costs
25. Costs of the PTR to be costs in the case.
Issued by:
Ayesha Bin Kalban
Assistant Registrar
Date of Issue: 6 March 2019
At: 1pm
