Privacy Settings

Claim No: CFI 095/2023

IN THE COURTS OF DUBAI INTERNATIONAL FINANCIAL CENTRE

IN THE COURT OF FIRST INSTANCE

BETWEEN

AHMED SEDDIQ MOHAMED SAMEA ALMUTAWA

Claimant

and

MOHAMED SEDDIQ MOHAMED SAMEA AL MUTAWA

Defendant

---

ORDER WITH REASONS OF JUSTICE RENE LE MIERE

---

UPON the Part 7 Claim Form dated 20 December 2023 (the “Claim”)

AND UPON the Claimant’s Application No. CFI-095-2023/3 dated 8 October 2024 seeking a Document Production Order (the “Application”)

AND UPON the Defendant’s evidence in answer to the Application dated 23 October 2024

AND UPON the Claimant’s evidence in reply dated 29 October 2024

IT IS HEREBY ORDERED THAT:

1. RTP 1: the Defendant must produce the documents requested by RTP 1, except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice.

2. RTP 4, 11, 12, 13, 17 and 18 the Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

3. RTP 5, 6, 7, 8 and 9, the Defendant must disclose the requested documents.

4. RTP 10: the Defendant may object to producing the documents on the grounds of PII by claiming specified documents or classes of documents are subject to PII and supporting the claim by an affidavit or witness statement detailing the reasons for confidentiality and the potential harm from disclosure. The Defendant must produce the documents in respect of which no PII claim is made subject to the Claimant entering into a confidentiality agreement in terms agreed by the parties or determined by the Court.

5. RTP 14, 15 and 16, the Defendant must produce the documents requested except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

6. The Defendant must pay the Claimant’s costs of the Application to be assessed on the standard basis if not agreed.

Issued by:
Delvin Sumo
Assistant Registrar
Date of Issue: 6 November 2024
At: 11am

SCHEDULE OF REASONS

Summary

1. The Claimant, Mr. Ahmed Seddiq Mohammed Samea Almutawa (the “Claimant”) is the elder brother of the Defendant, Mr. Mohamed Seddiq Mohamed Samea Almutawa (the “Defendant”). They are both UAE nationals and reside in Abu Dhabi.

2. In 2018, the Claimant held 70% and the Defendant held 30% of the shares in Atlas Dynamic Electronic System LLC (the “Company”). On 25 November 2018, by a sale and purchase agreement, the Claimant agreed to sell his shares to the Defendant for AED 16,030,000 (the “SPA”). The Defendant failed to meet his obligations under the SPA. Consequently, the Claimant demanded payment of the amount due under the SPA.

3. The Claimant brought a claim for the amount due under the SPA.

4. The Claimant requested the Defendant produce specified documents or classes of documents. The Defendant objected to producing the documents requested.

5. The Claimant has applied for a document production order that the Defendant produce the documents requested (the “Application”).

6. For the reasons that follow:

The Claim

7. The Claimant’s Claim appears to be a straightforward claim for amounts due under a sale and purchase agreement consequent on the Defendant’s breach of the agreement.

8. However, the Claimant’s Particulars of Claim (the “PoC”) include many pleas which go beyond pleading the SPA, breach by the Defendant, and the Claimant’s entitlement to the amounts due under the SPA.

9. The PoC includes the following pleas.

10. In early 2018, the Claimant decided to sell his shares in the Company to the Defendant.

11. On 11 April 2018 they engaged Deloitte Professional Services (“DIFC”) Limited (“Deloitte") to undertake a valuation of the Company. Deloitte submitted a draft valuation report on 12 August 2018 (“Deloitte Report”). Deloitte discussed the valuation process with the Defendant and valued the Company at AED 20.2 million to AED 22.9 million.

12. The parties engaged Alwifaq Legal Consultants to draft the transaction terms.

13. The Defendant agreed to the draft sale and purchase agreement terms.

14. By the SPA dated and executed on 25 November 2018, the Claimant sold his 70% share (70 shares of AED 1500 each) in the Company to the Defendant for AED 16,030,000, as per the SPA and an Amendment Addendum to the Memorandum of Association.

15. The AED 16,030,000 value was based on Deloitte’s Report, which was accepted by both parties. It was to be paid by one instalment of AED 267,206 on 30 June 2019 followed by 59 monthly payments of AED 267,166 until 30 June 2024.

16. Other terms of the SPA include:

• The purchaser is to pay Atlas Telecom dues by 31 December 2018.
• Removal of “Atlas” from trade license by December 31, 2019.
• If the Purchaser misses three monthly instalments or remains in breach for three months, the seller may terminate the agreement and demand all outstanding amounts immediately.
• The agreement is governed by DIFC laws and disputes are to be resolved by DIFC courts.

17. The Claimant fulfilled all SPA obligations, including transferring the Shares to the Defendant, paying Atlas Telecom dues by 31 December 2018, and removing “Atlas” from the Company’s trade license. With the Defendant as the sole shareholder, the Company became a One Person LLC and was renamed Al Saher International Electronic System-Sole Proprietorship.

18. The Defendant failed to pay the monthly instalments stipulated in the SPA. Accordingly, the Claimant invoked Clause 6 of the SPA which allows the Claimant to demand full payment if the Defendant misses three consecutive instalments, without waiting until June 2024.

19. Article 86 of the DIFC Contract Law allows a party to terminate the agreement if the other party’s failure to fulfil a contractual obligation constitutes a substantial and fundamental breach.

20. The Defendant’s actions constitute a fundamental non-performance, depriving the Claimant of legally due payments.

21. The Claimant seeks the following relief:

• To direct the Defendant to remit an amount of AED 16,030,000, as stipulated in Articles 6 and 7 of the SPA.
• To instruct the Defendant to pay 9% interest from June 30, 2019, until the final settlement, without prejudice to the Claimant's right to seek compensation for any subsequent damages incurred.
• To direct the Defendant to cover all legal expenses and fees.
• Such further or other reliefs as the Court may consider just and appropriate.

The Defence

22. The Defendant’s defences are unclear.

23. The Defendant admits that he signed the SPA. His defence appears to be that he did not fully and voluntarily assent to the SPA, that his consent was obtained through coercion, duress, or undue influence, or that he lacked the capacity to understand the contract, and so the contract is void or voidable.

24. The Defendant devotes a significant part of his defence to the Deloitte Report. It is necessary to refer to these pleas because much of the RTP concerns the Deloitte Report.

25. The Defendant pleads that:

• the Deloitte Report is a draft report and is expected to be superseded by the final report. [14.1]
• the Deloitte Report contains several outstanding matters that require clarification or confirmation by the management of the Company. [14.2]
• no party may place any reliance upon the report. [14.3]
• no other party is entitled to rely on the report for any purpose. [14.4]
• the Claimant has failed to justify the basis under which the report is relevant for the present claim. [15]

26. The Defendant further pleads that the Deloitte Report raises certain key considerations and limitations that are likely to affect Deloitte’s valuation conclusion of the Company, on the basis that:

• the valuation excludes any illiquidity-related adjustments to the nature of the business of the Company; [16.1]
• Deloitte’s procedures and enquiries are not inclusive of verification work or constituting an audit by the generally accepted auditing standards; [16.2]
• the information made available to Deloitte comprised unaudited management accounts and forecasts; [16.3]
• the total assets do not match the total liabilities and equity on the financial year of 2017 and the year-to-date 2018 balance sheets, and that a change to the balance sheets relied upon may have a material impact on Deloitte’s concluded value of the Company; [16.4]
• representations have been made by the Company that it held a secured current order pipeline of AED 119 million as part of the Company’s business plan and should this not materialize, Deloitte’s concluded value may be materially impacted; [16.5]
• the business plan of the Company is contingent on the Company being capable of successfully financing and delivering projects in the pipeline, and failure of which could result in an adverse impact on the Company’s business plan and key client relationships, and may materially affect Deloitte’s concluded value; [16.6]
• the valuation analysis is based on the financing structure of the Company as of the valuation date and does not consider any potential refinancing cost for a working capital facility that may be required post-valuation date [16.7].

27. The Defendant further pleads:

• The Company’s projects, noted in the Deloitte Report, failed due to the Claimant not signing key documents, affecting high-value contracts. This negatively impacted the Company’s business plan and client relationships, likely altering Deloitte’s valuation, which was initially a draft.
• The Deloitte Report does not reflect the actual value of the Company at the time of signing of the SPA, because all the essential factors substantially increasing the valuation of the Company were removed e.g., the potential projects, banking facilities, and the brand name ‘Atlas’.

28. The Defendant then pleads matters which appear to go the quality of his assent to the SPA. The Defendant pleads:

• The SPA incorrectly used the Deloitte Report’s range as the consideration amount; not all essential factors were present at the time of signing to accurately reflect the Claimant’s share valuation.
• The Defendant was under distress due to pressure and time limits for securing high-value contracts. The Claimant’s refusal to sign Company documents halted operations, forcing the Defendant to sign the SPA under duress to allow the contracts to proceed.
• The Claimant, in bad faith, pressured the Defendant into signing the SPA.
• the Defendant was not aware of the consideration amount of AED 16,030,000 and was under the impression that the instalments were on the amount needed to settle the Company’s outstanding liabilities to Atlas Telecom of AED 7,696,845.51.
• The Defendant lacked the cognitive capacity to fully understand the SPA’s terms.

Reply

29. The Claimant’s reply includes the following assertions.

• The Defendant was well aware of the consideration amount: The Amendment of Addendum to the Memorandum of Association of the Company explicitly records the consideration amount for the Shares and the original notarised document is in Arabic.
• The Claimant did not cause any loss and did not refuse to sign contracts.
• The Claimant did not put any pressure on the Defendant. The Defendant’s allegations of duress are baseless.
• The Defendant was well aware that the instalment amounts were for the consideration amount of AED 16,030,000.

Claimant’s case memorandum and list of issues

30. The Claimant filed a case memorandum and list of issues in preparation for the case management conference which resulted in the case management order. The Claimant stated the issues in the case to be:

31. It appears the Claimant understands the defences of the Defendant to be that the SPA was not executed by the Claimant and the Defendant with mutual consent and in good faith, and with the intention that its terms would be binding and be fully complied with by the parties.

Case management order

32. On 5 August 2024, the Court made a case management order. The order includes the following orders about the production of documents:

Claimant’s Request to Produce Documents

33. On 16 September 2024, the Claimant filed his Request to Produce Documents (“RTP”). The RTP contains a Document Production Schedule in the form of a Redfern Schedule that lists 18 classes of documents, many of which state multiple classes of documents.

34. On 3 October 2024, the Defendant filed its response to the Claimant’s RTP.

35. On 8 October 2024, the Claimant applied to the Court for a Document Production Order by filing a witness statement and the Redfern Schedule containing its RTP and the Defendant’s objections to its requests (the “Application”).

DPA is out of time

36. The Defendant submits that the Claimant’s Document Production Application (“DPA”) should be refused because it is out of time.

37. The Claimant responds as follows. His DPA was filed in line with the Case Management Order (“CMO”) issued on 5 August 2024, which set a deadline of 4 pm GST on 7 October 2024. Although the Application was processed on 8 October 2024 due to logistical issues, all supporting documents were sent to the Defendant on 7 October 2024 at 9:08 pm GST. The Court Portal was inaccessible for about two weeks, which was reported to the Registry. The Defendant’s claim that the Application is out of time is incorrect, as the delay was minimal and caused no substantive prejudice. The Claimant did not seek an extension or relief from sanctions due to the marginal delay and compliance with the CMO’s objectives. The Defendant’s assertion lacks proportionality, and dismissing the Application would be unfair and contrary to procedural justice principles. The minor delay did not materially prejudice the Defendant, so the Court should not refuse the DPA on these grounds.

38. The Claimant’s DPA was out of time. The Claimant should have sought an extension of time or relief from sanctions.

39. The Claimant’s failure to file the DPA by 4 pm on 7 October 2024 was an error of procedure which does not invalidate the step taken in applying for a DPO. The Court may make an order to remedy the error by ordering that the Claimant's DPA is taken to have been made in accordance with the CMO.

40. Courts use the three-stage test established in the case of Denton v TH White Ltd [2014] EWCA Civ 906 to decide whether to grant relief from sanctions under the Rules. The court first determines if the breach is serious or significant. If it is not, the application for relief is usually granted without further consideration. Secondly, the court examines the reasons behind the breach. Valid reasons might include unforeseen circumstances or events beyond the control of the party in default. Thirdly, the court looks at all relevant factors to ensure the decision is fair and just.

41. In this case, the breach is not significant. It was issued one day late. No prejudice has been caused to the Defendant and the court’s proceedings have not been delayed. There is a reasonable explanation for the delay. The Court Registry confirms that the Claimant experienced technical difficulties with the portal, their first email highlighting this difficulty to the Registry was dated 30 September 2024.

42. In the circumstances, the Court will make an order to remedy the Claimant’s procedural error by ordering that the Claimant's DPA is taken to have been made in accordance with the CMO.

The Request to Produce

43. Under Rule 28.28 of the DIFC Courts (“RDC”), the test for document production is both relevance and materiality. Documents must be relevant to the case, meaning they have a logical connection to the issues in dispute, and material to the outcome, meaning they have the potential to influence the Court’s decision. This dual test ensures that only documents that can significantly impact the case are produced, promoting efficiency and fairness in the process.

LPP and confidentiality

44. The Defendant has objected to requests 1,13,14,15, and 16 on the ground that communications between the Defendant and legal consultants cannot be disclosed as such information falls under legal privilege and confidentiality.

45. The Defendant refers to RDC 28.28 (2) which relevantly provides that the Court may, at the request of a party exclude from production any document because of legal impediment or privilege under the legal or ethical rules determined by the Court to be applicable.

46. In response to the Claimant's statement that it only requires factual information relevant to the valuation, not the privileged legal advice, the Defendant submits that RDC 28.28 does not mention the nature of the information that may be disclosed under legal privilege and as such communications of any nature between attorney and client remain confidential and protected under the RDC.

47. Legal professional privilege (LPP) is a common law right. It has been recognized and protected by common law courts for centuries. The privilege allows clients to resist disclosing communications between themselves and their lawyers

48. However, not all communications between a client and a lawyer are privileged. LPP generally covers two main types of communications:

• Legal Advice Privilege: This protects confidential communications between a lawyer and their client made for the purpose of giving or receiving legal advice and includes any documents that disclose such communications.
• Litigation Privilege: This applies to confidential communications between a lawyer, their client, and third parties, made for the dominant purpose of preparing for existing or reasonably contemplated litigation.

49. To claim LPP, a client must demonstrate that the communications in question meet the criteria for either legal advice privilege or litigation privilege. The client must:

• show that the communication was made for the dominant purpose of obtaining legal advice (legal advice privilege) or for use in existing or reasonably contemplated litigation (litigation privilege);
• was and remains confidential - if the communication has been shared with third parties outside the scope of the privilege, it may lose its protected status;
• explicitly assert the privilege when responding to requests for disclosure by stating that the documents or communications are privileged and providing a general description of the nature of the documents without revealing the privileged content; and
• where, as here, the alleged privilege has been challenged, provide a more detailed justification for the claim of privilege by explaining the context and purpose of the communications to show they meet the criteria for LPP.

50. In this case, the Defendant’s claim of LPP has not been properly made. First, the Defendant has erroneously claimed LPP on the basis that all communications between the Defendant and his legal advisers are privileged. Secondly, the Defendant has not justified the claim of privilege by stating the context and purpose of the communications to show that they meet the criteria for LPP.

51. For those reasons, I do not uphold the objections to produce on the grounds of LPP.

52. Confidentiality or commercial sensitivity alone is generally not sufficient for courts to refuse the production of documents in legal proceedings. Courts typically undertake a balancing act between the need for disclosure and the protection of sensitive information.

53. To resist the production of confidential information in legal proceedings, a party must typically establish that the information is confidential and that its disclosure would cause significant harm. The party resisting disclosure must provide compelling reasons why the harm outweighs the need for the information. If the court decides that the information must be disclosed, the party can request protective measures to limit the exposure of the sensitive information. This might include confidentiality agreements or restricted access.

54. The Defendant has not established that the relevant documents are confidential, and their disclosure would cause significant harm. Importantly, the Claimant has offered to enter into an appropriate confidentiality agreement.

55. I do not uphold the Defendant’s objections on the grounds of confidentiality. However, the Defendant may request the Claimant to enter into an appropriate confidentiality agreement.

The Requests

56. To avoid unnecessarily reproducing the contents of the RTP, I will refer to each request by number, summarise the Defendant’s objections to the request, my assessment of each objection and my conclusion whether the Defendant is required to produce the documents requested.

RTP 1

57. The Defendant objects to the request on the following grounds:

• Communications between the Defendant and legal consultants are protected under RDC Rule 28.28, which covers legal privilege and attorney confidentiality.
• The Claimant should already have the requested documents, as they claim the parties engaged Alwifaq Legal Consultants for a proper valuation involving the Defendant.
• The Claimant must provide evidence to support their claim, as the burden of proof lies with them.
• The request is too vague and not specific.
• The Defendant’s Defence (paragraphs 10-19) highlights discrepancies in the Deloitte Draft Valuation Report, affecting Deloitte’s valuation conclusion of Atlas Dynamic.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs, in line with the overriding objective.

58. Objection (a): For the reasons stated, the Defendant has not demonstrated that the requested documents are subject to LPP. However, the Defendant may withhold from production any document that he verifies by affidavit or witness statement is a communication between the Defendant and a lawyer that was made for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

59. Objection (b): The Claimant submits he does not have access to communications between the Defendant and third parties or legal consultants during the relevant period, as such communications were not shared with the Claimant at the time. The Claimant was also not involved much in the valuation process, as the same was at the behest of the Defendant. The objection is not upheld.

60. Objection (c): This is correct in some but not all respects. For example, it is for the Defendant to make a properly particularized claim of LPP or confidentiality.

61. Objection (d): This objection is not upheld.

62. Objection (e): This is a general observation only.

63. Objection (f): This objection is not upheld.

64. Request 1 conclusion: The Defendant must produce the documents requested by RTP 1, except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

RTP 4

65. The Defendant initially objected to the request.

66. However, notwithstanding its objections the Defendant says he will carry out a reasonable search for the requested documents if such documents exist. The Defendant must carry out a reasonable search, that is a search that is genuine and substantial, but not exhaustive. This search must include all types of electronic documents, regardless of the media in which they are stored.

67. RTP 4 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

RTP 5

68. The Defendant objects to the request on the following grounds:

• The Claimant incorrectly referenced paragraph 16.2 of the Defence, stating the Defendant alleged Deloitte’s procedures were not inclusive of verification work or an audit. This is a limitation noted by Deloitte in the Deloitte Report, therefore, the Defendant objects to the Claimant’s production request.
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

69. Objection (a) and (b): The Defendant pleads in his defence that the Deloitte Report:

• contains a number of outstanding matters that require clarification or confirmation by the management of Atlas Dynamic:[14.2];
• excludes any illiquidity-related adjustments to the nature of the business of Atlas Dynamic [16.1];
• Deloitte’s procedures and enquiries are not inclusive of verification work or constituting an audit in accordance with the generally accepted auditing standards [16.2]; and
• the information made available to Deloitte comprised of unaudited management accounts and forecasts: [16.3].

70. The request is relevant and material.

71. I do not uphold objection (c).

72. RTP 5 conclusion: The Defendant must disclose the requested documents.

RTP 6

73. The Defendant objects to the request on the following grounds:

• The Claimant incorrectly referenced paragraph 16.3 of the Defence, stating the Defendant claimed Deloitte’s information comprised unaudited management accounts and forecasts. This is a limitation noted by Deloitte in the Deloitte Report. Therefore, the Defendant objects to the Claimant’s production request
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

74. Objections (a) and (b): At [16.3] of his defence the Defendant pleads:

75. In [16.3] of his defence, the Defendant asserts that Deloitte’s information (the “information made available to Deloitte”) comprised unaudited management accounts and forecasts. That is so notwithstanding that the Defendant’s plea is based on statements in the Deloitte report.

76. Objection (c) is not upheld.

77. RTP 6 conclusion: The Defendant must disclose the requested documents.

RDT 7

78. The Defendant objects to the request on the following grounds:

• The Claimant incorrectly cites paragraph 16.4 of the Defence, claiming the Defendant alleges discrepancies in the 2017 and 2018 balance sheets. This is not the Defendant’s allegation, but a limitation noted by Deloitte affecting its valuation. Thus, the Defendant cannot fulfil this request.
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

79. Objection (a) and (b): At [16.4] of his defence the Defendant has raised these discrepancies as a limitation in Deloitte’s valuation. They are relevant to the dispute including the Defendant’s knowledge of the valuation inputs. The Defendant must carry out a reasonable search, meaning it should be genuine and substantial, but not exhaustive.

80. Objection (c) is not upheld.

81. RTP 7 conclusion: The Defendant must disclose the requested documents.

RTP 8

82. The Defendant objects to the request on the following grounds:

• The Claimant incorrectly cites paragraph 16.5 of the Defence, claiming the Defendant alleges Atlas Dynamic’s secured order pipeline of AED 119 million may impact Deloitte’s valuation. This is not the Defendant’s allegation, but a limitation noted by Deloitte. Thus, the Defendant cannot fulfil this request.
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

83. Objections (a) and (b): The Defendant’s plea at [16.5] of his defence raises whether representations had been made by Atlas Dynamic that it held a secured current order pipeline of AED 119 million as part of Atlas Dynamic’s business plan and should this not materialize that was likely to affect Deloitte’s valuation of Atlas Dynamic. These objections are not upheld.

84. Objection (c) is not upheld.

85. RTP 8 conclusion: The Defendant must disclose the requested documents

RTP 9

86. The Defendant objects to the request on the following grounds:

• As part of the document request, the Claimant has referred to paragraph 16.7 of the Defence and has incorrectly mentioned that “Defendant alleges that the valuation of Atlas Dynamic is based solely on its financing structure as of the valuation date, without taking into account any potential refinancing costs for a working capital facility that may arise after the valuation date.” However, this is not an allegation made by the Defendant and is a key consideration and limitation stated by Deloitte as likely to affect its valuation and has been referenced from the Deloitte Report. Therefore, the Defendant cannot be expected to fulfil such a request.
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

87. Objections (a) and (b): Paragraph 16.7 and other pleas in the Defendant’s defence make the documents requested relevant.

88. Objection (c) is not upheld.

89. Request 9 conclusion: The Defendant must produce the requested documents.

RTP 10

90. The Defendant objects to the request on the following grounds:

• These requested documents are not available. Alternatively, if they are made available, these documents fall under strict confidentiality as they subject of government related entities in the security industry. Notwithstanding, the Deloitte Report refers to key considerations and limitations as likely to affect its valuation in respect to the materialization of projects as referenced from page 14 of Annexure C3 of the Particulars of Claim. Therefore, the Defendant cannot be expected to fulfil such a request.
• The documents are not relevant.
• The Claimant must ensure requests are specific and proportional to the case’s time and costs.

91. Objection (a); The Defendant does not elaborate on his statement that the documents are not available beyond saying that the documents fall under strict confidentiality and are subject to government-related entities in the security industry. A person can claim public interest immunity (PII) over documents that are government-related and are sensitive to national security. To successfully claim PII, the Defendant must demonstrate that the disclosure of the documents in question would be detrimental to the public interest. If the documents are not subject to PII, it is not sufficient that they are commercially sensitive. The objection has not been made out. However, the Claimant is willing to enter into a confidentiality agreement. The Defendant may ask the Claimant to enter into an appropriate confidentiality agreement concerning specified documents or classes of documents.

92. Objections (b) and (c): These objections are not upheld.

93. RTP 10 conclusion: The Defendant may object to producing the documents on the grounds of PII by claiming specified documents or classes of documents are subject to PII and supporting the claim by an affidavit or witness statement detailing the reasons for confidentiality and the potential harm from disclosure. The Defendant must produce the documents in respect of which no PII claim is made subject to the Claimant entering into a confidentiality agreement in terms agreed by the parties or determined by the Court.

RTP 11

94. The Defendant initially objected to the request but in the second witness statement of Robert Whitehead the Defendant agreed that he will carry out a reasonable search for the requested documents.

95. Request 11 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

RTP 12

96. The Defendant objects to the production of these documents on the ground that the Defendant does not have these in his possession.

97. A party must conduct a reasonable search for relevant documents. The search must be reasonable, considering factors such as the number of documents, the complexity of the case, the ease and cost of retrieving documents, and the significance of the documents. The party must search for documents that are or have been in their control. This includes documents in their physical possession, documents they have a right to possess, or documents they have a right to inspect. The Defendant must undertake a reasonable search and provide a disclosure statement confirming that he has complied with this duty to the best of his knowledge.

98. Request 12 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

RTP 13

99. The Defendant initially objected to the request but in the second witness statement of Robert Whitehead the Defendant agreed that he will carry out a reasonable search for the requested documents.

100. Request 13 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

RTP 14

101. The Defendant objects to the request on the same grounds that he objects to Request 1.

102. The objections are not upheld for the same reasons.

103. RTP 14 conclusion: The Defendant must produce the documents requested by RTP 14, except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

RTP 15

104. The Defendant objects to the request on the same grounds that he objects to Request 1.

105. The objections are not upheld for the same reasons.

106. RTP 15 conclusion: The Defendant must produce the documents requested by RTP 15, except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

RTP 16

107. The Defendant objects to the request on the same grounds that he objects to Request 1.

108. The objections are not upheld for the same reasons.

109. RTP 16 conclusion: The Defendant must produce the documents requested by RTP 16, except for those he verifies are communications with a lawyer for the dominant purpose of giving or receiving legal advice. In so far as the Defendant claims a document is confidential, he may ask the Claimant to enter an appropriate confidentiality agreement.

RTP 17

110. The Defendant initially objected to the request but in the second witness statement of Robert Whitehead the Defendant agreed that he will carry out a reasonable search for the requested documents.

111. Request 17 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

RTP 18

112. The Defendant initially objected to the request but in the second witness statement of Robert Whitehead the Defendant agreed that he will carry out a reasonable search for the requested documents.

113. Request 18 conclusion: The Defendant must carry out a reasonable search for the documents stated in the RTP and produce any documents located as a result of that search.

Costs

114. The Claimant has been mostly successful. The Defendant must pay the Claimant’s costs of the Application to be assessed on the standard basis if not agreed.