NMC Healthcare LTD (in administration) and associated companies v Dubai Islamic Bank PJSC & Others [2023]

In the name of

His Highness Sheikh Mohamed bin Zayed Al Nahyan

(1) NMC HEALTHCARE LTD (IN ADMINISTRATION) (SUBJECT TO A DEED OF COMPANY ARRANGEMENT)

(2) - (32) THE COMPANIES LISTED IN SCHEDULE 1 TO THIS JUDGMENT (33) RICHARD FLEMING and (34) BENJAMIN CAIRNS

(in their capacities as joint administrators of the Claimants (1) - (32))

Claimants and

(2) - (13) THE INSURANCE COMPANIES AND THIRD-PARTY ADMINISTRATORS LISTED IN

(1) DUBAI ISLAMIC BANK PJSC SCHEDULE 2 TO THIS JUDGMENT

Defendants

JUDGMENT OF JUSTICE SIR ANDREW SMITH

Neutral Citation:

[2023] ADGMCFI 0013

Before:

Justice Sir Andrew Smith

Decision Date:

6 June 2023

Decision:

Application refused.

Hearing Date(s):

Date of Orders:

Catchwords:

Collateral use of disclosed documents. Variation of interim order. Bank customers' rights of confidentiality.

Cases Cited

Science Research Council v Nasse [1980] AC 1028

Legislation Cited:

Federal Decree Law 14 of 2018 ADGM Arbitration Regulations

Case Number:

ADGMCFI-2021-042

Parties and representation:

Claimants

Mr Nico Leslie

Instructed by Quinn Emanuel Urquhart & Sullivan UK LLP

First Defendant

Ms Charlotte Eborall

Instructed by Eversheds Sutherland International LLP

JUDGMENT

There are, if I recall correctly, 34 Claimants in these proceedings, but the claims of a number of them against the first defendant, Dubai Islamic Bank (' DIB '), are stayed by orders made on 12 July 2021 and at the first Case Management Conference in these proceedings, which was held on 30 September 2021. The proceedings are pursued against DIB by some 20 claimants, the so-called ' non-guarantor claimants ', or ' NGCs ', who were formerly subsidiaries of NMC Healthcare Limited, or ' NMCH '.
The Claimants whose claims against DIB are stayed are pursuing arbitration proceedings against DIB, and, as I am told, they and some of the NGCs are pursuing claims against DIB's subsidiary Noor Bank PJSC (' Noor ') in the same reference. The arbitration proceedings are before an LCIA tribunal in LCIA arbitration number 215360, and the seat of the arbitration is England.
Rule 89(1) of the ADGM Court Procedure Rules provides that, subject to an immaterial exception, a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed.
At the first Case Management Conference, I directed that rule 89(1) be disapplied in relation to use of the disclosed documents ' for the purposes of (i) the intended arbitration proceedings between the Claimants and DIB and its wholly owned subsidiary [Noor] (including for the avoidance of doubt any applications to Court in relation to the arbitration proceedings permitted by the arbitration agreement between the parties); and (ii) the proceedings in the UAE onshore courts commenced by DIB and/or Noor set out ' in a schedule to the order. That direction was recorded in paragraph 14 of my order following the first CMC, the order being dated 7 October 2022 (the ' CMC Order ').
In December 2022, DIB applied for authorisation to disclose and make available for inspection in these proceedings documents and information relating to five of its customers or former customers, namely Dr BR Shetty, Guide General Contracting and Maintenance LLC (' GGCM '), Royal Catering Services (' RCS '), Neopharma LLC and Centurion Investments, a sole proprietorship. DIB sought authorisation because of prohibitions under UAE law, including Article 120 of Federal Decree Law 14 of 2018, upon banks disclosing information about their customers' affairs without the customers' written permission unless, as it is put in the translation that was before me earlier and is before me today, ' authorised by law '. DIB was concerned that it or its officials might be exposed to criminal sanctions if they made disclosure without authorisation from the Court, but considered that authorisation from this Court would be regarded as ' authorisation by law ' within the meaning of Article 120.
The NGCs and DIB initially proposed that the Court should authorise use of the information simply on the basis that they consented to an order to that effect, without the Court seeing or knowing anything about the documents or information in question, and without notice to the customers whose rights to confidentiality would be compromised. I declined so to proceed, and therefore held a hearing on 20 February 2023 on notice to the customers.
DIB sought authorisation not only for disclosure and inspection of the documents in the proceedings in this Court, but also to deploy the documents in the arbitration reference. It was argued that I had jurisdiction to authorise use in the arbitration under article 31 of the ADGM Arbitration Regulations. I was not persuaded of that, and I determined that I had no jurisdiction with regard to that part of the application.
With regard to the application about disclosure and inspection in these proceedings, I considered that I had jurisdiction to give authorisation, but that I should exercise it only if and insofar as I concluded that, on balance, the case for doing so outweighs the customers' rights and interests in having the documents and information kept confidential. I also considered that I should therefore inspect the documents in question to form a view about where the balance fell in that regard, following the guidance of Lord Scarman in Science Research Council v Nasse [1980] AC 1028 .
I therefore directed that DIB should disclose the documents by list, considering that this in itself would not intrude upon the confidentiality interests and rights of the customers, and that DIB provide the documents to the Court for my inspection.
In my order following the hearing on 20 February 2023, I varied the order recorded in paragraph 14 of the CMC Order by qualification the disapplication of rule 89(1) with this exception: ' save to the extent that the documents contain data or information in respect of which [DIB] owes obligations of confidentiality to Dr BR Shetty, Centurion Investments (a sole establishment), Neopharma LLC, Guide General Contracting and Maintenance LLC or Royal Catering Services LLC ".
After the hearing on 20 February 2023, DIB accordingly provided documents to me for inspection. The need for me to inspect and give authorisation in respect of Dr Shetty's documents was overtaken by his written permission to disclosure. By orders of 28 March 2023 and 19 April 2023, I authorised inspection of some documents relating to other customers, in some cases having directed redactions.
I understand that the Claimants in the arbitration sought disclosure by DIB of documents relating to the same customers and that, by an order of 18 April 2023, the Tribunal granted the Claimants' application, subject to DIB obtaining the customers' consent in accordance with Article 120 or the parties procuring authorisation.
DIB has sought the customers' consent. I am told by DIB's counsel, and it is now, I think, uncontroversial and is in evidence, that none of the customers, including Dr Shetty, has given permission.
However, the Claimants now seek to put themselves in the position to use the documents in the course of the arbitration by another route. They apply for an amendment of my order of 20 February 2023 so as to permit collateral use in the arbitration of the documents of which I authorised inspection (the ' Application '). In their draft order they also seek permission to use them in onshore proceedings, such as are referred to in paragraph 14 of the CMC Order, but that part of the Application was not pursued today. DIB would resist that part of the Application.
I observe that the variation of the order does not relate to Dr Shetty's documents, which were not subject to authorisation by my previous orders because of his consent.
The Claimants did not give notice of the Application to the defendants in these proceedings other than DIB. More troublingly, they did not give notice to the customers until yesterday they sought to send emails to those for whom they had email addresses.
The Application was supported by a witness statement of Ms Karabeth Ovenden, a lawyer and partner in the Claimants' solicitors, Quinn Emanuel Urquhart & Sullivan LLP. I have recently received a second witness statement of Ms Ovenden. I note two points with regard to the first witness statement. Firstly, it referred to the documents of Dr Shetty, Neopharma, Centurion and RCS, but made no reference to GGCM. Secondly, it stated that Dr Shetty had given permission for use of his documents in the arbitration, but that is now acknowledged to be wrong.
DIB's position on the Application is neutral, save that (as I have said) were the original application relating to use in the onshore proceedings to be pursued, it would resist that.
To my mind, it would be wrong to grant the Application. First, there is no good reason that the customers were not given more notice of it. The Claimants knew that I required the customers be given notice of the application made last December, including the application then made to allow use in the arbitration. The Claimants should have realised that, similarly, the Court would have wished the customers to have proper notice of this Application.
Secondly, as Mr Nico Leslie, who appeared for the Claimants today, accepted, as a matter of principle the Court will only vary an interlocutory order if there has been a material change of circumstances or the Court, when making the order, was materially misled. There is no suggestion that I was misled when making my order of 20 February 2023. Before today, the Claimants had not sought to identify a material change of circumstance.
It is true that since 20 February 2023 the Claimants have seen the documents of which I authorised disclosure, and that the Tribunal has made its disclosure direction, but those developments were entirely foreseeable and foreseen in February 2023.
Mr Leslie pointed out that the question with which I am now concerned relates to a specific category of documents, those that were subject to my orders of 28 March 2023 and 19 April 2023, and not to a broad, undefined or ill-defined category; and he suggested that this is a material change of circumstance. It is true that this Application relates to a more defined category of documents, but it was certainly foreseen and foreseeable in February 2023 that the focus would come to be upon a specific category or more narrowly defined category of documents. I cannot see anything here that is properly to be regarded as a material change of circumstance.
Thirdly, and most fundamentally, in substance the Claimants seek an order from a Court of the UAE to allow use of documents and information protected by Article 120 of the UAE statute without it being in a position to assess whether their interests, that is to say the Claimants' interests, or the interests of the parties in the arbitration, or any other considerations, outweigh the prima facie statutory rights of the customers. This is because I have not been told anything about the issues in the arbitration or how important the documents are with regard to resolving them.
It is submitted that the Tribunal has ruled that the documents are prima facie relevant and disclosable in the arbitration, and that, given the focused disclosure regime in LCIA arbitrations, this means that they were judged by the Tribunal to be reasonably necessary to the fair disposal of the referred claims, and indeed that that view is consistent with orders made of this court.
In this regard, I make three observations. First, of course I do not question the Tribunal's view that the documents are relevant to issues before them. I would hesitate to do so, and I am certainly not in a position to do so on the material before me. But the Tribunal did not have the task that I have of considering the rights of the customers under UAE legislation and balancing those rights against the interests of the parties to the reference and the proper disposal of matters in the reference.
Secondly, in these proceedings, the NGCs used the documents and information of which I authorised disclosure to plead allegations against DIB, including allegations of dishonesty. I am in the course of the trial at the moment, and DIB's witnesses have given evidence. The allegations to which the documents or information might be relevant were not put to any of DIB's witnesses in cross-examination, and now the NGCs have applied for permission to abandon them. Of course, this is a development after the Tribunal gave its order. The Claimants have not explained whether they wish to use the documents to pursue in the arbitration allegations similar to those made and not pursued in these proceedings, or whether they wish to use them to pursue other allegations.
Thirdly, the Application seeks a blanket direction about all the documents to which my orders of 28 March and 19 April 2023 relate. Even if an order relating to some of them might be justified, it does not follow that a blanket order would be appropriate.
In the course of his submissions, Mr Leslie attractively suggested that the purpose of the order sought would simply be to allow the Claimants to review the documents in order to decide whether to apply for authorisation by law within the meaning of Article 120 and so to take the matter further later. The Application as it stands, and the order sought, go further than that. They seek permission to use the documents and information in the arbitration without any such limitation. Nor is it in evidence that that is the purpose for which the application is made.
More importantly, perhaps, it has not said how the matter might proceed after review. It was floated that ' authorisation by law ' might be sought from this Court but it has not indicated what jurisdiction this Court would have to entertain any such application. It was also floated that authorisation by law might be sought from the English Court, as the Court supervising the arbitration, or from the Tribunal. There is no material before me from which I can infer that that would provide authorisation by law within the meaning of Article 120. The short point is that consideration should have been given as to how matters might go forward after an initial review and an explanation put forward in evidence. It is not a matter which this court can entertain without an evidential basis.
Those are my reasons for refusing the Application.

Issued by:

Linda Fitz-Alan

SCHEDULE 1

No.	Company	Registration No.
1	Al Zahra Pvt. Hospital Company LTD including its branch Al Zahra Pvt. Hospital Company LTD - SHJ.BR, with license no. 16506 (in administration) (formerly known as Al Zahra Pvt. Hospital Company Limited, with license no. 16506)	000004237
2	Bait Al Shifaa Pharmacy LTD including its branches Bait Al Shifaa Pharmacy LLC Dubai Branch- Jafza, with commercial license no. 164999 and Bait Al Shifaa Pharmacy - Dubai Branch, with license no. 224351 (in administration) (formerly known as Bait Al Shifaa Pharmacy (L C), with license no. 224351)	000004236
3	Eve Fertility Center LTD including its branch Eve Fertility Center LTD - SHJ.BR, with license no. 539107 (in administration) (formerly known as Eve Fertility Center L.L.C, with license no. 539107)	000004206
4	Fakih IVF Fertility Center LTD including its branches Fakih IVF Fertility Center LLC - Branch 3, with license no. CN-1360709-3, and Fakih IVF Fertility Center LLC - Branch 4 with license no. CN-1360709-4 (in administration) (formerly known as Fakih IVF Fertility Center L.L.C., with license no. CN- 1360709)	000004224
5	Fakih IVF LTD including its Dubai branch with license no. 666849 (in administration) (formerly known as Fakih IVF L.L.C, with license no. 666849)	000004220
6	Grand Hamad Pharmacy LTD including its branch Grand Hamad Pharmacy LTD, with license no. 607766 (in administration) (formerly known as Grand Hamad Pharmacy LLC, with license no. 607766)	000004238
7	Hamad Pharmacy LTD including its branch Hamad Pharmacy LTD, with license no. 118795 (in administration) (formerly known as Hamad Pharmacy L.L.C, with license no. 118795)	000004209
8	N M C Provita International Medical Center LTD including its branches N MCProvita International Medical Centre L.L.C. - Branch 1, with license no. CN-1194307-1, Provita International Medical Centre L.L.C. - Branch 2, with license no. CN-1194307-2, and NMCProvita International Medical Centre L.L.C. - Branch 3, with license no. CN-1194307-3 (in administration) (formerly known as N M C Provita International Medical Center L.L.C., with license no. CN-1194307)	000004240

No.	Company	Registration No.
9	N M C Royal Hospital LTD including its branches NMC Clinic (BR of NMC Royal Hospital LLC), with license no. 814785, NMC Polyclinic Branch of NMC Hospital LLC, with license no. 163880, NMC DIC Clinic and Pharmacy (BR of NMC Royal Hospital LLC), with license no. 860025, NMC Hospital (BR of NMC Royal Hospital LLC), with license no. 878386, and its Dubai branch with license no. 710432 (in administration) (formerly known as N M C Royal Hospital L.L.C, with license no. 710432)	000004225
10	N M C Royal N M C Royal Hospital LTD (in administration) (formerly known as N M C Royal Hospital L.L.C., with license no. CN- 2015786)	000004245
11	N M C Royal Medical Centre LTD including its branches NMC Royal Medical Centre LLC - Branch (Shahama), with license no. CN-2912685, and NMC Royal Medical Centre LLC -Branch (Karama), with license no. CN-2895125, and NMC Royal Medical Centre LLC -Branch 1 (Abu Dhabi), with license no. CN-2150457-1 (in administration) (formerly known as N M C Royal Medical Centre L.L.C., with license no. CN-2150457)	000004197
12	N M C Specialty Hospital LTD (in administration) (formerly known as NMC Specialty Hospital- LLC, with license no. CN- 1026386)	000004217
13	NMC Healthcare LTD , including its Dubai branch with license no. 610400 (in administration) (formerly known as N.M.C Health Care (L.L.C), with license no. 610400)	000004210
14	N.M.C Specialty Hospital LTD including its Dubai branch with license no. 562359 (in administration) (formerly known as N M C Specialty Hospital (LLC), with license no. 562359)	000004241
15	New Medical Centre LTD including its Dubai branch with license no. 127562 (in administration) (formerly known as New Medical Centre L.L.C, with license no. 127562)	000004214
16	New Medical Centre LTD including trading in Ras Al Khaimah as NMC Royal Dental Centre under license no. 38678, NMCRoyal Medical Centre, under license no. 21518 and NMC Royal Pharmacy, under license no. 21669 and including its branches New Medical Centre Ajman LLC-BR, with license no. 95454, New Medical Centre L.L.C - Branch of Abu Dhabi 2, with license no. CN-1831682, New Medical Centre L.L.C.-Branch, with license no. 185190 and New Medical Centre LTD - SHJ.BR, with license no. 25954 (in administration) (formerly known as New Medical Centre L L C, with license no. 25954)	000004216

No.	Company	Registration No.
17	New Medical Centre Pharmacy LTD including its branch New Medical Centre Pharmacy - LLC - Al Ain - NMC - Branch 1, with license number CN-1135313-1 (in administration) (formerly known as New Medical Centre Pharmacy - L.L.C - AlAin - NMC, with license no. CN-1135313)	000004253
18	New Medical Centre Pharmacy LTD including its branches New Medical Centre Pharmacy/Branch, with license no. 96634, New Medical Centre Pharmacy LLC NMC Branch 1, with license no. 766270 and New Medical Centre Pharmacy LTD - SHJ.BR, with license no. 608411 (in administration) (formerly known as New Medical Centre Pharmacy LLC- N.M.C, with license no. 608411)	000004255
19	New Medical Centre Specialty Hospital LTD (in administration) (formerly known as New Medical Centre Specialty Hospital LLC, with license no. CN-1135806)	000004228
20	New Pharmacy Company LTD including its branches New Pharmacy Company WLL - Branch 1, with license no. CN-1029364-1, New Pharmacy Company WLL - Branch 2, with license no. CN-1029364-2, New Pharmacy Company WLL - Branch 4, with license no. CN-1029364- 4, New Pharmacy Company WLL - Branch 6, with license no. CN- 1029364-6, New Pharmacy Company WLL - Branch 7, with license no. CN-2914258, New Pharmacy Company WLL - Branch - (Shahama), with license no. CN-2936047, and New Pharmacy Company WLL - Branch 9, with license no. CN-2832792 (in administration) (formerly known as New Pharmacy Company WLL, with license no. CN-1029364)	000004230
21	NewSunny Medical Centre LTD including its branch NewSunny Medical Centre LTD - SHJ.BR, with license no. 556959 (in administration) (formerly known as New Sunny Medical Centre LLC; N.M.C Medical Center L.L.C Shj. BR 2, with license no. 556959)	000004202
22	NMC Royal Family Medical Centre LTD (in administration) (formerly known as NMC Royal Family Medical Centre L.L.C., with license no. CN-1491505)	000004243
23	NMC Royal Women's Hospital LTD including its branch Cooper Health Clinic 1 - Dubai Branch, with license no. 689748 (in administration) (formerly known as NMC Royal Womens Hospital LL.C., with license no. CN-1532709)	000004235
24	Sharjah Pharmacy LTD including its branch Sharjah Pharmacy LTD - SHJ.BR, with license no. 14966 (in administration) (formerly known as Sharjah Pharmacy L.L.C, with license no. 14966)	000004239

No.	Company	Registration No.
25	Sunny Al Buhairah Medical Centre LTD including its branch Sunny Al Buhairah Medical Centre LTD - SHJ.BR, with license no. 558052 (in administration) (formerly known as N.M.C MEDICAL CENTER L.L.C SHJ.BR and Sunny Al Buhairah Medical Centre LLC, with license no. 558052)	000004199
26	Sunny Al Nahda Medical Centre LTD including its branch Sunny Al Nahda Medical Centre LTD - SHJ.BR, with license no. 572409 (in administration) (formerly known as N.M.C MEDICAL CENTER L.L.C SHJ.BR 4 and Sunny Al Nahda Medical Centre LLC, with license no. 572409)	000004232
27	Sunny Dental Centre LTD including its branch Sunny Dental Centre LTD - SHJ.BR, with license no. 571311 (in administration) (formerly known as N.M.C Dental Centre L.L.C and Sunny Dental Centre LLC, with license no. 571311)	000004198
28	Sunny Halwan Speciality Medical Centre LTD including its branch Sunny Halwan Speciality Medical Centre LTD - SHJ.BR, with license no. 747560 (in administration) (formerly known as Sunny Halwan Speciality Medical Centre LLC, with license no. 747560)	000004204
29	Sunny Maysloon Speciality Medical Centre LTD including its branch Sunny Maysloon Speciality Medical Centre LTD - SHJ.BR, with license no. 751420 (in administration) (formerly known as Sunny Maysloon Speciality Medical Centre L.L.C, with license no. 751420)	000004205
30	Sunny Medical Centre LTD including its branch Sunny Medical Centre LTD - SHJ.BR, with license no. 212280 (in administration) (formerly known as N.M.C MEDICAL CENTER L.L.C SHJ.BR 1 and Sunny Medical Centre LLC, with license no. 212280)	000004231
31	Sunny Sharqan Medical CentreLTD including its branch Sunny Sharqan Medical Centre LTD - SHJ.BR, with license no. 744404 (in administration) (formerly known as Sunny Sharqan Medical Centre L.L.C, with license no. 744404)	000004203
32	Sunny Specialty Medical Centre LTD including its branch Sunny Specialty Medical Centre, with license no. 545893 (in administration) (formerly known as N.M.C MEDICAL CENTER L.L.C SHJ.BR 3 and Sunny Speciality Medical Centre LL.C., with license no. 545893)	000004200

SCHEDULE 2

No.	Insurance Respondents/ Defendants
2	Aetna Global Benefits (Middle East) LLC
3	Dubai Insurance Company psc
4	AXA Insurance (Gulf) B.S.C. (c)
5	American Life Insurance Company - Alico
6	Neuron LLC
7	NAS Administration Services LLC
8	Saudi Arabian Insurance Company B.S.C (C).
9	Al Buhaira National Insurance Company
10	MedNet UAE FZ LLC
11	National General Insurance Co. (psc) -HealthNet
12	GlobeMed Gulf Healthcare Solutions LLC
13	Mobility Saint Honore International For Medical Insurance Claims Management L.L.C. (MSH)

SCHEDULE 3

Non - NMC Entity	Documents
GGCM	4, 8, 12, 15, 17, 18, 38, 39, 41, 43 and 45
RCS	98, 106, 115, 129, 156 and 166
Centurion	1, 3, 5, 15 and 25
Neopharma	10, 19, 32, 41, 60 and 108