Privacy Settings

Claim No: CFI 037/2017

THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS

IN THE COURT OF FIRST INSTANCE

BETWEEN

ILYAS GAFFAR SABOOWALA

Claimant

and

1) SOMAN KUNIYATH KUNJUNNI NAIR
(2) MINI SOMAN THORUVIL VELUTHEDRATH
(3) RAG FOODSTUFF TRADING LLC

Defendants

CASE MANAGEMENT ORDER WITH REASONS OF JUSTICE ROGER GILES

UPON reviewing the Court file

AND UPON reading the Pre-Trial Review Bundle

AND UPON reviewing the Rules of the DIFC Courts (“RDC”)

AND UPON hearing Counsel for the Claimant and Counsel for the Defendants at the Pre-Trial Review held before Justice Roger Giles on Wednesday 3 March 2021

AND UPON the Defendants' Application to Amend the Amended Defence and Counterclaim, dated 23 February 2021 (“the Amendment Application”)

IT IS HEREBY ORDERED THAT:

Amended pleadings

1. The Defendants are permitted to amend their Amended Defence and Counterclaim in the form attached to their Amendment Application other than in respect of their proposed amendment to paragraph 138, which is not permitted, such Re-Amended Defence and Counterclaim to be filed and served on or before 25 March 2021.

2. The Claimant, if so advised, is permitted to amend his Amended Reply and Defence to Counterclaim, any such Re-Amended Reply and Defence to Counterclaim to be filed and served on or before 15 April 2021.

3. The Claimant shall file and serve any requests to produce documents on or before 15 April 2021.

4. The Respondents shall provide any responsive documents or objections to the Claimant's requests to produce documents on or before 29 April 2021.

5. Where objections to any requests to produce have been made, the Court shall determine those objections and shall make any disclosure order on or before 13 May 2021.

6. The Defendants shall comply with the terms of any disclosure order and file a Document Production Statement on or before 27 May 2021.

7. The Claimant shall file any witness statements in response to the Re-Amended Defence and Counterclaim on or before 17 June 2021.

8. The Claimant shall file any expert evidence in response to the Re-Amended Defence and Counterclaim on or before 17 June 2021.

List of Issues

9. The Claimant shall circulate a draft updated list of issues on or before 22 April 2021.

10. The Defendants shall provide any comments on the Claimant’s draft updated list of issues on or before 6 May 2021.

11. The parties shall endeavor to agree the draft updated list of issues on or before 20 May 2021 and to the extent not agreed, will record in the draft updated list of issues those issues which are agreed and any issues which are not agreed.

Trial Bundles (RDC Part 35)

12. The Claimant shall circulate a draft trial bundle index at least 6 weeks before trial and the Defendants shall provide any comments thereon within 14 days.

13. The agreed trial bundle shall be filed and served by the Claimant (in electronic format) 21 days before trial.

Reading List and Trial Timetable (RDC Part 35)

14. The Claimant shall circulate a draft reading list for trial and draft timetable for trial no later than 14 days before trial and the Defendants shall provide any comments thereon within 5 days.

15. 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 Claimant no later than 4 clear days before trial.

Skeleton Argument and Chronology (RDC Part 35)

16. The Claimant shall circulate a draft chronology no later than 14 days before trial and the Defendants shall provide any comments thereon within 5 days. The Claimant shall provide the agreed chronology with his skeleton argument.

17. Skeleton arguments shall be filed and exchanged 4 clear days before the start of trial.

Trial (RDC Part 35)

18. The trial of this matter shall be listed in the third week of November 2021 on a date to be fixed with an estimated duration of 4 days.

Costs

19. Costs of the Pre-Trial Review and the costs of the Amendment Application shall be costs in the case.

Liberty to apply

20. The parties shall have liberty to apply.

ssued by:
Ayesha Bin Kalban
Deputy Registrar
Date of issue: 15 March 2021
At: 10am

REASONS ON THE AMENDMENT APPLICATION

1. The Defendants' application to amend their defence and counterclaim was made when the exchange of witness statements and expert reports had been completed, and a PTR had been appointed at which hearing dates were to be given. At the PTR listed today the potential hearing dates are in the latter part of May 2021. The Defendants had, however, proposed the amendments to the Claimant at the end of January, shortly before the PTR was appointed, and been rebuffed in an exchange of correspondence thereafter. Before getting to the PTR, I have heard the application to amend.

2. The Claimant says that it is made late, and it is to the extent that it is made when the proceedings have reached the point of readiness to receive hearing dates. But one principle is that amendments should be allowed so that a party can put forward its real case and the real dispute between the parties can be determined, and much more than lateness comes into consideration. What is the occasion for the amendments? How significant are they? What will their effect be, if allowed, on the existing preparation of the proceedings for hearing and on the proposed hearing dates? The objective is to deal with cases justly, in which expedition is only one element, and any prejudice to the Claimant if the amendments are allowed must be balanced against prejudice to the Defendants if they are not allowed.

3. I have been greatly assisted by the comprehensive skeleton arguments of Ms Ahmed for the Defendants and Mr Wigley for the claimant, as added to in oral submissions. As I indicated to Counsel, there is a considerable element of case management in arriving at a just determination.

4. The Claimant is prepared to agree to some of the amendments, whilst maintaining that they are without merit or otherwise misconceived. I go only to the disputed amendments.

5. It is of considerable importance that the Defendants do not say that allowing the amendments will carry with it that they may supplement their evidence already filed. Their position is that the amendments are to bring their defence and counterclaim into line with the evidence already filed, and provide more particularity conforming to the evidence. They say that the amendments do not expand the case but narrow it, based on the evidence already filed.

6. The Claimant, for his part, maintains that the disputed amendments raise new matters, as to which he should have the opportunity to request production of documents and to adduce further evidence, including expert evidence; and that he will be prejudiced by delay in the hearing dates and by having to revisit steps in the litigation and duplicate costs and effort.

7. I take the disputed amendments in turn. In doing so, it is necessary to have well in mind the function and requirements of statements of case. Subject to specific matters in the Rules, particulars of claim or counterclaim should be a concise statement of the facts on which the Claimant or Counterclaimant relies. A defence should admit, deny or state inability to admit or deny, and if it denies should state the reasons for doing so and if a different version of events is to be put forward state that version. The statements of case are concerned with facts, and the facts are then the subject of evidence.

8. The first disputed amendment is paragraph 47.5 in the Defence. The only factual content in it, the remainder being by way of submission, is the allegation that the SPA was drafted by the Claimant's lawyer without discussion or consultation with or explanation to the Defendants. The same allegation is pleaded in more detail but with that substance in paragraph 38 of the Defence in relation to a different provision of the SPA. The allegation is the subject of the Defendants' evidence in a witness statement already filed, to which the Claimant has responded by a witness statement. I do not see any prejudice to the Claimant if the amendment is allowed.

9. The next category of amendments is paragraphs 75.1 and 75.2 in the Defence. There is dispute over whether AED 1.25 million paid in June/July 2016 was part payment of the purchase price. The Claimant says that it was. In the existing Defence the Defendants deny that it was. In paragraphs 74.1 and 74.2, so far as factual, the Defendants amplify that denial by allegations describing the relevant cheques or transfer and what they were for. The factual allegations are effectively a summary restatement of the Defendants' evidence in a witness statement, and a witness statement of the Claimant sets out his account of the payments and what they were for. The matter is also the subject of expert reports filed on both sides. Again, I do not see any prejudice to the Claimant if the amendment is allowed.

10. There is then a series of amendments to the Counterclaim, of two kinds.

11. The first is to paragraph 137. In the existing paragraph it is alleged that RAG is being “deprived of its proprietary interest in trademarks." The amendment is a prefatory allegation that the Claimant continues to refuse to reassign two identified trademarks to RAG, that being the circumstance of deprivation. As a statement of fact, it is supported by a witness statement already filed by the Defendants, which it has been open to the Claimant to respond to on the existing paragraph 137. The counterclaim includes a prayer for an order for reassignment of the trademarks, so there can be no doubt of the point of the allegation. I enquired of Mr Wigley whether the allegation was disputed, and he was unable to provide a definitive answer; however, it seems to me that it cannot be, and again I do not see any prejudice to the Claimant if the amendment is allowed.

12. Going then to paragraph 138, the existing paragraph alleges that RAG is being deprived of the use of vehicles unlawfully retained by the Claimant. The amendment replaces this with the allegation that the Defendants were forced to take steps, including instigating criminal proceedings, to recover vehicles belonging to RAG which were unlawfully retained by the Claimant. The “forced to” is embroidery: the additional factual allegation is instigating criminal proceedings. Ms Ahmed was unable to indicate that the existing evidence supported that proposition. In that situation, and given that the amendment on the Defendants' position was intended to reflect the evidence, it is not an amendment which can be permitted.

13. Going then to paragraph 139, the present paragraph alleges that customer lists and supplier lists have been unlawfully retained and are being unlawfully exploited “by targeting customers and suppliers of RAG" to its detriment. The amendment is to substitute exploitation by selling products manufactured by another company under a trademark and passing them off as RAG's products. This is a more specific allegation of wrongdoing than the generalised allegation of targeting, but within it. The evidence to which Ms Ahmed took me suffices to provide arguable support for the proposition of fact. It is again something to which the Claimant has had the opportunity to respond, and again I do not think that allowing the amendment will cause any prejudice to him.

14. The final amendment of this kind is to paragraph 149. The present paragraph 149 alleges that “the conduct of the Claimant in respect of the SPA has been unconscionable and has resulted in extraordinary and grievous damage to the Defendants", and that the Defendants are entitled to triple damages pursuant to Article 40(2) of the DIFC Law of Damages and Remedies. The amendment replaces the words I have quoted with the words “the actions of the Claimant set out above were deliberate steps by the Claimant", as the substituted basis for triple damages.

15. The “actions of the Claimant set out above" were particularised in the course of submissions today as the matters in paragraphs 133 to 148. The only factual matter raised by the amendment is whether these actions were deliberate. To the extent that evidence called by the Defendants or their cross-examination of the Claimant establishes the actions, it is scarcely conceivable that they were not deliberate. However, it will be incumbent on the Defendants to put to the Claimant that they were and he will have the opportunity to deal with that factual matter; it will then be a matter for submissions whether entitlement to triple damages has been made out. Again, I do not see any prejudice to the Claimant if the amendment is allowed.

16. There is then an application to amend paragraph 150 in the Counterclaim. The present paragraph 150 states that the Defendants “reserve their entitlement to join in [a named company and a named person] as co-defendants to the counterclaim". The amendment is to add a second named company. This reservation is not a material fact in the Counterclaim. It should not be there, and is liable to be struck out. The Claimant is not prejudiced by the Defendant's enlarging of the irrelevant reservation, and the matter is not worth further attention.

17. Taking things out of order, the position is similar in relation to amendment by adding paragraph 153. The amendment seeks to add a paragraph stating that the Defendants reserve the right to plead other losses suffered by them in addition to those the subject of the matters to which I next refer. As with paragraph 150, this is not a material fact in the Counterclaim. It does not matter whether it is there or not.

18. Finally, I go to amendment by adding paragraph 152 and amending prayer vi. The present Counterclaim baldly alleges in paragraph 151 that the Defendants have suffered significant loss and damage and are entitled to damages, and the prayers then include claims to damages under a number of heads, for example for breach of contract, for negligence and so on. The amendments delete some of the heads, to which the Claimant does not object; add a paragraph 152 in which the Defendants allege that they have suffered loss in four described amounts; and replace the prayer for “damages for breach of contract pursuant to part 11 of the DIFC Contract Law" with the prayer for “damages in the sum of AED 2,741,816 as pleaded in paragraph 152 above."

19. The position in relation to these amendments is rather different. The Defendants said that "all these matters", meaning the quantification of the loss, were set out and referred to in the evidence. The bulk of the evidence going to the loss was contained in witness statements in reply, and the question of amendment to add paragraph 152 is the catalyst for a different issue, which I raised with counsel.

20. The Claimant did not seek particulars of the loss and damage alleged in paragraph 151 of the Counterclaim as it presently stands. As matters now stand, without the amendment it would be open to the Defendants to rely on the unquantified claim in that paragraph, and to invite the Court to find an amount of loss on the evidence it has filed. As a matter of fact, however, as a result of the order of exchange of evidence, the Claimant has not had the opportunity to respond to that evidence; nor, regrettably, did it ask for it. This is a quite unsatisfactory state of affairs, as it seems to me that the Court is going to be put in a position in which it cannot deal justly with the issue of whether loss has been suffered and, if so, in what amount.

21. The amendment amounts to late particulars of the loss alleged. It seems to me that there should be the opportunity given to the Claimant to explore the quantification alleged. Given the Defendants' position that the amendments are to bring the pleading into line with the evidence, it seems to me that the result is that the amendment should be allowed but the Claimant should be given the opportunity to investigate by interlocutory procedures the constitution of the amounts now alleged. Thus, it seems to me, a timetable similar to that suggested by Mr Wigley needs to be put in place in consequence of the amendment. I am of the view that this should occur, that is allowing the amendment but with that consequence, even if the fixing of hearing dates involves slightly later dates than those presently in contemplation, although given the time in hand I do not anticipate a significant delay.

22. The result, therefore, is that save in relation to paragraph 138 the amendments should be allowed, and I will discuss with Counsel a timetable of the nature I have indicated.