December 15, 2022 court of first instance - Orders
Claim No: CFI 030/2022
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
MAD ATELIER INTERNATIONAL B.V.
Claimant
and
(1) AXEL MANES
(2) CATHERINE ZHILLA
Defendants
ORDER OF JUSTICE SIR JEREMY COOKE
UPON the Order of Justice Sir Jeremy Cooke dated 14 October 2022 setting out document production directions (the “Order”)
AND UPON the Claimant’s Request to Produce Documents in respect of the First Defendant dated 11 November 2022 (the “Claimant’s Request Against D1”)
AND UPON the Claimant’s Request to Produce Documents in respect of the Second Defendant dated 11 November 2022 (the “Claimant’s Request Against D2”)
AND UPON the Second Defendant’s Objections to Produce filed in response to the Claimant’s Request dated 21 November 2022 (“D2 Objections to Production of Documents”)
AND UPON the First Defendant’s Objections to Produce filed in response to the Claimant’s Request dated 5 December 2022 (“D1 Objections to Production of Documents”)
AND UPON reviewing the relevant submissions in the case file
IT IS HEREBY ORDERED THAT:
1. The Claimant’s Request Against D1 is granted in respect of each of the categories of documents sought under Requests 1-11
2. The First Defendant shall pay the Claimant’s costs of Claimant’s Request Against D1 to be the subject of assessment if not agreed.
3. The Claimant’s Request Against D2 is granted in respect of each of the categories of documents sought under Requests 1, 3, 4, 6, 7, 8, 9, 11, 12 and the Second Request Numbered 5 and:
(a) Request 2: all documents sought save that the only bank statements which are to be produced are those which show sums paid by the Second Defendant by way of investment into Five Dining.
(b) First Request Numbered 5: all documents sought, save that the only bank statements which are to be produced are those which show sums paid to the Second Defendant by Five Dining.
(c) Request 10: all documents sought save that the only bank statements which are to be produced are those which show sums paid to the Second Defendant by Five Aces.
4. All documents are to be produced by the Defendants within the period of 7 days from the date of this Order.
Issued by:
Ayesha Bin Kalban
Registrar
Date of issue: 15 December 2022
At: 4pm
SCHEDULE OF REASONS
Claimant’s Request Against D1
1. The First Defendant is represented and there is no excuse for the failure by him to obey Court orders in relation to the time for submitting objections to produce documents or the failure to seek an extension of time or seek relief against sanctions. The Court nonetheless has considered the objections made. The First Defendant and his lawyers have been aware of the categories of documents sought and must be in a position to produce them speedily, in circumstances where there is, as appears below, no justification for the refusal to do so. Given the proximity of the trial, production of the documents ordered must be given within 7 days of this Order. The First Defendant must also pay the costs of this Application to be the subject of assessment if not agreed.
2. There is no privilege against self- incrimination in the law of the DIFC which could operate to excuse a party from disclosing documents which are material and otherwise fall to be disclosed in civil proceedings in the DIFC. The First Defendant’ Note on Policing dated 29 November 2022 and filed with the Court on 30 November 2022 does not accurately represent the law in the DIFC. Equally there is no right to silence in criminal proceedings in the UAE or under the Arab Charter of Human Rights. Moreover, even if such rights existed, they would be inapplicable in the context of civil proceedings relating to the ownership of property (see the comparable position in the UK, as set out in section 13(1) of the Fraud Act 2006 in a jurisdiction which preserves the right to silence in criminal proceedings).
3. In these circumstances, the First Defendant’s objections to production of documents under Requests 1-11 for the reasons set out in the Note on Policing are unsustainable. RDC 28.28 (2) presents no bar to disclosure here.
4. The First Defendant’s objection to production of communications between himself and the Second Defendant, before they were married, at the time that they were married and subsequently following the decree of divorce, is also unsustainable for the same reasons. There is no relevant provision of law in the DIFC which exempts a party from production of documents in civil proceeding relating to property on that basis. RDC 28.28 (2) presents no bar to disclosure here.
5. Whether or not the First Defendant is a named director, officer or shareholder in Five Dining or Five Aces, or an employee or independent contractor, he must disclose and produce documents that are in his possession custody or control where the Court orders production of documents of the category in question relating to the company, its management or shares. This is essential in a case where there is a dispute as to ownership of the shares of the company. A failure to produce documents that are in the possession, custody or control of a party may be the basis for an adverse inference to be drawn by the Court against that party.
6. The First Defendant maintains that he does not own the shares in dispute and that they belong to others. He can maintain no privilege of any kind in respect of documents passing between himself and his wife or between lawyers acting for the two of them in the context of the divorce or any dispute over matrimonial property. No disclosure is sought in relation to documents passing between the First Defendant and his own lawyers.
7. Requests 1 and 2 are therefore granted and the First Defendant must, within 7 days, disclose and produce such document as are in his possession, custody or control in the categories sought.
8. Request 3 is granted. In the context of a judgment of the English Court against the First Defendant and the dispute over ownership of shares, the First Defendant must, within 7 days, disclose and produce all documents in his possession, custody or control in the categories sought.
9. Requests 4- 9 are granted for the reasons given in relation to the preceding requests and the First Defendant must, within 7 days, disclose and produce all documents in his possession, custody or control in the categories sought.
10. Requests 10 and 11 are granted for the reasons given in relation to the preceding requests and additionally because the First Defendant has relied on some documents in the Divorce Proceedings. All documents passing between the First and Second Defendants and either of them and the Court are material and the First Defendant must, within 7 days, disclose and produce all documents in his possession, custody or control in the categories sought.
Claimant’s Request Against D2
11. Until any relief is granted on the application of the Second Defendant, or the Claimant agrees otherwise, the existing Order of the Court in relation to disclosure must be obeyed, since if there is no agreement between the parties or relief ordered by the Court, the trial date would otherwise be jeopardised.
12. In consequence, the Claimant’s Request Against D2, insofar as they are relevant and material to the pleaded issues between the parties, must be produced in accordance with the timetable ordered by the Court. No element of disproportionality applies, and all the documents of which production is sought by the Claimants and listed above are necessary for the fair disposal of the dispute between the parties, for the reasons given by the Claimant.