July 01, 2024 COURT OF FIRST INSTANCE - ORDERS
Claim No: CFI 030/2023
IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
(1) SAM PRECIOUS METALS FZ-LLC
(2) SAMI RIYAD MAHMOUD ABU AHMAD
(3) ROSYSON FZE
Claimants
and
(1) SNYDER PRIME LIMITED
(2) PHOEBE LEAH TOOKER
(3) SHAKTHI CHAUHAN
Defendants
RULING AND ORDER OF JUSTICE ANDREW MORAN
UPON reviewing the Court file
AND UPON reviewing the Order of the Court of 29 May 2024
AND UPON reviewing an Amended Defence filed on 3 June 2024
AND UPON considering the Fourth Witness Statement of the Third Defendant Shakthi Chauhan filed on 3 June 2024 with additional exhibits
AND UPON considering the Claimant’s objections to certain paragraphs of the Amended Defence, and to the Fourth Witness Statement of Shakthi Chauhan and to several of the exhibits attached to it, by email of 5 June 2024, on the grounds that the filings are in breach of the Order of the Court of 29 May 2024, “The Claimants’ Objection”
AND UPON considering the Defendants’ response to the said objections in the First Witness Statement of Santanu Ghosh dated 21 June 2024
AND UPON considering the Claimants’ reply to the Defendants’ said response in the Fourth Witness Statement of Anuj Garg of 26 June 2024
AND UPON considering the Claimants’ Amended Reply to the Amended Defence, its Annexures and the witness statements and exhibits filed with it on 20 June 2024
IT IS HEREBY ORDERED AND DIRECTED THAT:
1. Permission is retrospectively granted to file the Amended Defence in the redline form in which it was filed on 3 June 2024, notwithstanding that its contents are in excess, and in breach of the order and permission of the Court dated 29 May 2024.
2. Permission is retrospectively granted to file and rely on the Fourth Witness Statement of Shakthi Chauhan and all the exhibits thereto, notwithstanding that its contents are in excess and in breach of the order and permission of the Court dated 29 May 2024.
3. The Claimants are granted permission to produce, if so advised, any additional witness statement or statements, exhibiting any additional documents they wish to rely on, and their final Amended Reply in redline form, in full and complete response to the Defendants’ amended and additional filings, referred to in paragraph 1 and 2 of this Order, by or before 4pm (GST) on 5 July 2024.
4. The Claimants’ representatives shall prepare and file an indexed, paginated, supplementary bundle of documents containing all of those new documents presented to the Court, during the hearing of the trial, which was adjourned, and all documents subsequently filed, which are referred to in this Order.
5. Without prejudice to or modification of the costs order at paragraph 8 of the Order of 29 May 2024, the Defendants shall in addition pay the Claimants’ costs of and incidental to, the making of the Claimants Objection, in any event, on the indemnity basis.
Issued by:
Hayley Norton
Assistant Registrar
Date of issue: 1 July 2024
At: 2pm
SCHEDULE OF REASONS
1. In purported compliance with the permission and Order of the court of 29 May 2024 the Defendants have filed an Amended Defence and a further (fourth) witness statement of the Third Defendant, Shakthi Chauhan, with exhibits, to which the Claimants have taken strenuous, and in my view, legitimate objection. This is on grounds contained in its representatives’ email of 5 June 2024 to the Court. The grounds of objection can be shortly summarised as being on the basis that the filings are in clear excess and breach of the strict limits that the court imposed in granting permission for the filings, in its order of 29 May 2024.
2. It is most unfortunate that the mode of responding, and the content of the response to the objection made by the Defendants’ counsel, has put the Court in an invidious position in dealing with it. Counsel, Mr Ghosh, has departed from his position and role as Counsel at the bar in the proceedings, and instead of making submissions to the Court, has instead filed a statement, which is a mixture of evidence supporting the Defendants’ case, and submissions that it has not breached the Court’s order.
3. In order to deal with the objection and response, which it must do urgently now, where the Claimants need to know the result of their objection and whether to file further pleadings and evidence with the adjourned trial shortly to resume, the Court has been put in an intolerable position. It is left with no option but to make an appraisal and judgment about a witness statement made on behalf of his clients, by counsel acting in the case. This requires it to make a judgment about the content and propriety of a statement made by counsel. It is unheard of, and outwith my experience for counsel to descend into the evidential fray in this manner. The complaint and objections in the fourth witness statement of Mr Garg, that counsel has put himself in a position of conflict of interest and duty, are justified and accepted. The Court does not have the luxury of time to convene a hearing to give counsel an opportunity to explain himself; and must act swiftly and make a judgment based on what appears before it. It must do so in the interests of justice, for the avoidance of another wasteful adjournment and in pursuit of attainment of the overriding objective.
4. In my judgment, having considered the evidence and submissions of counsel Mr Ghosh, which I reject; and having myself made the order last mentioned; and having seen the Defendants’ filings made as a result of it; it is clear that the evidential ground they cover, and the additional exhibits to those for which permission to adduce was granted, represent an obvious and serious breach of the order. That breach ought not to have been perpetrated by a party or its counsel, who has a clear duty not to mislead the court or act in breach of its orders.
5. When granting permission orally at the trial, to put the then lately produced and specifically identified documents in evidence, and to plead and support by evidence, the new case that was being advanced in reliance upon them, the Defendants’ counsel was specifically asked by me, and replied as follows:
Justice Andrew Moran:
“I want to be sure of the limit of the documents that you are seeking to introduce and evidence to describe them and their effect. I went through with you the documents that I had received from the registry, five clips of documents in number. I identified them to you. Is that the limit of what you are now seeking to put in evidence under cover of a further witness statement?”
Mr Ghosh:
“It is related to Vin Gold only, if I am not wrong. We are not producing any other documents except the one which was already put to Mr Anuj Garg. That also I will add because as a process it needs to be added.”
6. In those circumstances, when the Defendants’ counsel Mr Ghosh, received instructions, evidence and documents following the hearing, that led to the filings since placed before the Court, now the subject of legitimate objection, there was only one obvious and proper course for him to follow. That was to be open and frank with the Court and make a fresh application to make the amendments to the Defence now made, and to rely on the more extensive new evidence, the Defendants now seek to rely on. It was wrong and not in accordance with proper professional practice and his duty to the Court, to seek to pass off these filings as being compliant with the Court’s order.
7. Having failed to act in that correct manner, and then when objection was taken to the filings and that correct course would have been even more obvious, it is disturbing that first, he stood by while the Second Defendant in person made submissions on the Defendants’ behalf that “the pleadings and the attached exhibits are perfectly in compliance with the order ……” and then (when the Court refused to entertain submissions from a represented party herself) went on to make a witness statement on behalf of his clients, which the Court unfortunately finds to be contrived and misleading. In those circumstances, the Court finds the objection raised by the Claimants to be justified and reasonable, and that there are grounds that would justify striking out the paragraphs of pleading, statement and exhibits complained of.
8. However, this is a Court of justice for the parties. It will do justice and act fairly towards them in trying their disputes, determining the real issues between them on the basis of all relevant evidence and submissions. It will not allow them to be prejudiced by any ill-judged conduct by their lawyers, so long as no prejudice will be suffered by another party in the case.
9. I have therefore considered the filings based on whether they would have been admitted and allowed, if a proper application had been made in respect of them. I am satisfied that they express or articulate a defence and provide evidence in support of it, that the Defendants legitimately seek to advance in response to the claims made against them. That is not to express any view whatsoever on the merits, which will only be considered after hearing all of the evidence in the case. Although the amended defence and evidence comes very late before the Court, and have caused an adjournment of the trial, I am satisfied that they can be fairly responded to and dealt with by the Claimants, for the following reasons:
(a) The Amended Defence substantially reflects the evidence of the Third Defendant going beyond his statements and the original defence, that he gave in chief, when the matter first came on for trial. It therefore serves, as does the further written evidence and exhibits, albeit very belatedly, to give proper pleaded notice of the case that is being advanced, that was lacking before they were produced. That, together with the adjournment that the court had no option, in fairness to the Claimants to order, serves to reduce the adverse effect of the Claimants being ambushed by the late coming and new parts of the defence.
(b) Having seen the Amended Reply and witness evidence produced by the Claimants already, with reservations of an entitlement to produce more in response, (which conveys an obvious implication of an ability to do so), if the Amended Defence and evidence was admitted, I am satisfied, as late as it is, that the Claimants will be able to produce all necessary pleading and evidence in response to the new features of the defence to their claims, that the Court is now admitting. The Claimants will therefore suffer no prejudice that cannot be compensated in costs, by permitting the amendment, and admitting the evidence the Defendants seek to rely on.
(c) The new evidence and pleading rests in significant part on matters of accounting, and what the Financial Statements of the First Claimant demonstrate, concerning the introduction of capital, its type, source, cost of financing and the duration of its provision. The Claimants now have proper, albeit very late, notice of these features of the defence. They are matters that the Claimants’ witnesses, including their expert witness, may deal with; and have already dealt with to a certain extent, in the person of two witnesses, who have already made further statements. Mr Ghosh will be obliged to put to the Claimants’ witnesses, including their expert witness, so they may comment on it, the Defendants case on these matters; and the Court will ensure that he does so properly, in accordance with the hallowed rule in the case of Browne v Dunne (1893) 6 R.67 HL.
(d) The Court is well able to consider the timing and circumstances in which this amendment and new evidence has been brought forward, and its content, in making its judgments on the weight and credibility of all that is placed before it.
10. For the foregoing reasons, the Court therefore allows the Amendment to the Defence that has been filed and admits the further evidence filed in support of it.
