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Practical Guidance Note No. 1 of 2023 DIFC Courts’ Virtual Hearing and Bundling Protocol

Practical Guidance Note No. 1 of 2023

DIFC COURTS’ VIRTUAL HEARING AND BUNDLING PROTOCOL

1 Introduction and scope

The Virtual Hearing and Bundling Protocol (the “Protocol”) is intended to provide a comprehensive framework of rules and guidance for how the DIFC Courts (the “Courts”) wish to conduct virtual hearings using virtual technology (“Virtual Hearings”) and the use of Bundles, in order to ensure accessibility, efficiency and fairness.

The Protocol applies to any civil and commercial proceedings conducted as Virtual Hearings under the jurisdiction of the Small Claims Tribunal (“SCT”), the Court of First Instance (“CFI”) and the Court of Appeal (“CA”). The section on Bundling does not apply to claims brought in the SCT.

Hearings (including trials) shall either be conducted as Virtual Hearings, in-person, or semi-Virtual (i.e. where one or more party appears from a remote location, and other parties appear in-person).

In particular, the Protocol covers the rules which are applicable to all Virtual Hearings as well as the logistical arrangements set up by the Courts and which the Courts expect parties to implement themselves.

Save where permission is obtained and given by the Court, all hearings will be held on a remote basis, and a copy of the Protocol will be circulated to the parties by the Registry at the time of listing the Hearing. Should the parties wish to conduct the proceedings in-person, permission must be sought from the Registry.

For the purposes of the Protocol, all persons who wish to attend the Virtual Hearing shall be referred to as “Attendees” whereas those persons who play an active role during the Hearing, including Judges, the Registrar, Court and Registry staff, counsel (excluding solicitors), witnesses, experts, transcribers and interpreters shall be referred to as “Participants”.

The Registry may, in its discretion, decide to vary the provisions of the Protocol at any time.

2 Citation

This Practical Guidance Note will come into effect from 07 June 2023. It may be cited as Practical Guidance Note No. 1 of 2023 – Virtual Hearing and Bundling Protocol and may be abbreviated as PGN 1/2023.

3 Technology arrangements

Parties must provide the Registry with a list of the names of all Attendees (not a Participant to the hearing) and their corresponding email addresses at least 3 business days before the scheduled start date of the Virtual Hearing in order for a videoconferencing link to be circulated.

Public hearings shall be live streamed on the DIFC Courts' website, found in the detailed view of the scheduled hearing at the following link : https://eregistry.difccourts.ae/#courtcalendar.

Virtual Hearings will be conducted using the DIFC Courts' Digital Courtrooms facility.

Parties are encouraged to arrange a time on the day before the scheduled start of the Virtual Hearing to conduct an IT and connection test with the DIFC Courts. Upon receipt of a testing request from the parties, the Registry will circulate a test videoconferencing link for all relevant Participants to connect to for the sole purposes of such testing. Ahead of this IT and connection test, parties should ensure that they have set up all relevant IT equipment which they intend to use during the Virtual Hearing in order that it can be properly tested.

In cases where the use of transcribers and/or interpreters is required, the instructing party is encouraged to involve them in the IT and connection testing. The instructing party shall be responsible for ensuring that any transcribers and/or interpreters receive a copy of and understand the Protocol ahead of the Virtual Hearings.

In order to join a Virtual Hearing, Attendees are recommended to use Google Chrome or Microsoft Edge as a browser, or alternatively to have the Microsoft Teams programme installed on their device.

On the day of the Virtual Hearing, Attendees should connect to the videoconferencing link at least 15 minutes before the scheduled start time to give themselves ample time to resolve any last-minute technical issues which may arise and avoid disrupting the hearing schedule.

If at any point any Participant suffers technical issues or loses connection, they must immediately notify the Court through any reasonable and available means so that appropriate action can be taken to resolve the issue.

4 Recording and transcription of virtual hearings

All Virtual Hearings are recorded and by joining, all Attendees are deemed to give their consent to being recorded.

Attendees must not use any unofficial recording equipment (whether audio or visual) to make their own recording of the Virtual Hearings without prior permission of the Court.

Parties may request a transcript of the recording of any Virtual Hearings, subject to payment of the relevant charges for the provision of such service, which will vary according to the length of the Virtual Hearings and the desired turnaround time. Parties shall be notified of the charge for such service by the Registry at the relevant time.

While reasonable endeavours are used to abide by the service turnaround time, parties should be aware that such service is outsourced to an external third-party provider and the Registry cannot therefore be held responsible where such timeframes cannot be met.

Parties may also wish to instruct a third-party transcriber or interpreter themselves to report during the hearing and/or after. If parties wish to do so, they must first seek the Court’s consent and any costs of such services must be entirely borne by the instructing party or may be shared between the parties by mutual agreement. The instructing party shall also be solely responsible for any logistical arrangements which may be required to facilitate the provision of such services. Any third-party will be therefore added as a participant to the Virtual Hearing.

It is strictly prohibited to livestream Virtual Hearings on any platform. Any person wishing to view or attend a public Virtual Hearing may only do so by joining via the videoconferencing link provided by the Registry.

5 Sitting days and hours

The Court’s standard sitting times are from 10:00 GST to 16:00 GST, Monday to Friday.

Given the Court’s international nature, sitting times may need to be varied in order to accommodate Participants who may be located in different regions and time zones. This may extend to the Court sitting on days which fall as public holidays in the UAE or elsewhere when required in exceptional circumstances. Such variations shall be directed by the Registry or the Judge.

Where parties require any further adjustment to the Court’s sitting times, they must notify the Judge at the earliest opportunity possible so that appropriate provisions can be made.

On standard sitting days, there shall be a 1-hour break for lunch and at least one break of 15 minutes mid-morning and one break of 15 minutes mid-afternoon. If sitting times are truncated as a result of time zone differences between Participants, the duration and timing of breaks shall be agreed between the parties and the Judge on a case-by-case basis. Parties should make their proposals in the agreed trial timetable.

Before the Virtual Hearing is adjourned for a break, the Judge shall inform the parties what time the Virtual Hearing will resume again. Parties must ensure they rejoin the Virtual Hearing promptly at the scheduled time to avoid disrupting the hearing.

6 Digital bundle

All hearings conducted in the Courts require bundles to be submitted electronically, whether they are in-person hearings, Virtual Hearings or semi-Virtual Hearings.

The case bundle must be uploaded onto the DIFC Courts' eRegistry Bundling system or whichever other platform is in use by the DIFC Courts at any given time. The user guide can be found at the following link: https://www.difccourts.ae/difc-courts/case-bundle

If multiple bundles are required at different stages of the hearing (for example, at the Pre-Trial Review, any interlocutory application, and then the substantive hearing), these must be kept separate from each other.

The parties shall agree an index of documents to be included in any bundle which is to be uploaded and filed. The index should reflect the structure and order in which the documents shall be uploaded onto the eRegistry in the relevant sections.

Bundles must be uploaded in continuous sections which should cover case management documents, including (as applicable) an agreed reading list, chronology, dramatis personae, trial timetable, list of issues, information sheet, pre-trial review checklist, orders/judgments issued within the course of the claim, skeleton arguments and any other documents deemed relevant to the parties.

If the parties are unable to agree the inclusion of certain documents, the parties may create additional sections for the inclusion of documents not agreed. The section title must make clear which party is requesting their inclusion and that such documents are not agreed. There must only be one bundle for each stage of the proceedings.

The Claimant(s)/Applicant(s) shall be responsible for creating, uploading and filing the digital bundle for the Hearing.

The Claimant(s)/Applicant(s) shall be responsible for ensuring that all relevant persons have access to all the digital bundles and must update the access permissions on the eRegistry accordingly.

At least one designated person from each party must be given full access permission on the eRegistry so that they are able to create a new bundle and upload documents. The Defendant(s)/Respondent(s) must notify the Claimant(s)/Applicant(s) of the name of the designated person within their legal counsel team.

7 Witness and expert evidence

Parties should agree in advance the order in which witnesses of fact and experts will give evidence as part of the hearing timetable discussions.

Witnesses shall be sworn in by taking a religious oath or giving a secular affirmation to the Judge before giving their evidence. If witnesses wish to take a religious oath, they shall inform the Registry of which Holy Book they wish to swear their oath upon.

Prior to the commencement of the Virtual Hearing, parties must ensure that a copy of the required Holy Book is readily available in order to avoid delays to the scheduled start time.

Witnesses and experts may refer to a clean hardcopy of their witness statement(s)/expert reports only. Parties must seek permission from the Judge if a witness and/or expert wishes to use any other hardcopy documents or a hardcopy bundle whilst giving their evidence. Parties, witnesses and/or experts may be required to show that any hardcopy bundle which is permitted by the Judge to be used is free from markings and annotations.

When giving evidence, no other person may be in the room with the witness unless authorised by the Judge. Should the witness require assistance in navigating the Bundle, a member of the legal team will be allowed to assist.

Witnesses and experts must not communicate through any means with any other person regarding the case while they are giving evidence. Where a witness or expert’s evidence carries across several days, the witness or expert must remain in purdah until the completion of their evidence. Witnesses may only communicate with their party or their party’s legal team insofar as any logistical or administrative matters are concerned.