Rules of the Dubai International Financial Centre Courts 2014

Part 1 - Citation, commencement, application and the overriding objective

Citation

These Rules may be cited as The Rules of the Dubai International Financial Centre Courts 2014 and may be abbreviated to “RDC 2014”.

Commencement

These Rules are made by the President of the Dubai International Financial Centre on the date specified in the Enactment Notice in respect of these Rules.

These Rules come into force on the date specified in the Enactment Notice in respect of these Rules.

Any rule amendments subsequent to the enactment of Dubai Law No. 7/2011 on 10 July 2011 are made by the Chief Justice of the DIFC Courts.

Application

These Rules apply to all proceedings in:

1. the Court of First Instance; and
2. the Court of Appeal established in accordance with Article 3 of the Law of the Judicial Authority at Dubai International Financial Centre, (Article 3 of Dubai Law No. 12/2004), and
3. tribunals established in accordance with Article 14(3) of the DIFC Courts Law of 2004, (Article 14(3) of DIFC Law No. 10/2004) which are collectively called the DIFC Courts.

The Overriding Objective

These Rules have the overriding objective of enabling the Courts to deal with cases justly. Dealing with a case justly includes, so far as is practicable:

1. ensuring that the parties are on an equal footing;
2. saving expense;
3. dealing with the case in ways which are proportionate—
   1. to the amount of money involved;
   2. to the importance of the case;
   3. to the complexity of the issues; and
   4. to the financial position of each party;
4. ensuring that it is dealt with expeditiously and fairly; and (5) allotting to it an appropriate share of the Courts' resources, while taking into account the need to allot resources to other cases.

Application by the Courts of the overriding objective

The Courts must seek to give effect to the overriding objective when it—

1. exercises any power given to it by the Rules; or
2. interprets any Rule or Practice Direction subject only to the public interest.

Duty of the parties

The parties are required to help the Courts to further the overriding objective.

Courts' duty to manage cases

The Courts must further the overriding objective by actively managing cases including:

1. encouraging the parties to co-operate with each other in the conduct of the proceedings;
2. identifying the issues at an early stage;
3. deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
4. deciding the order in which issues are to be resolved;
5. encouraging the parties to use an alternative dispute resolution procedure if the Courts considers that appropriate and facilitating the use of such procedure;
6. helping the parties to settle the whole or part of the case;
7. fixing timetables or otherwise controlling the progress of the case;
8. considering whether the likely benefits of taking a particular step justify the cost of taking it;
9. dealing with as many aspects of the case as it can on the same occasion;
10. dealing with the case without the parties needing to attend at the Courts;
11. making use of technology; and
12. giving directions to ensure that the trial of a case proceeds quickly and efficiently.

Part 2 - Interpretation

Authentic text and language of proceedings

The English text is the authentic text of these Rules.

All proceedings before the Courts shall be conducted in the English language.

All documents required to be filed or served in accordance with these Rules shall be in the English language.

Where any judgment, order or direction is to be served outside the DIFC in the UAE, unless the Courts otherwise direct:

1. in proceedings on notice the parties must agree and lodge with the Courts an Arabic translation of the judgment, order or direction within 2 days of same being given, made or handed down as the case may be, in default of which the Courts may accept one party's translation or suspend or revoke the judgment, order or direction on such terms as it thinks fit;
2. in without notice proceedings the party seeking relief must provide an Arabic translation of the order sought and made;
3. in the event of any inconsistency between the Arabic and English versions of any judgment, order or direction the English version shall prevail.

Definitions

Unless the context otherwise requires, the words and expressions set out in the Schedule to this Rule shall have the respective meanings assigned to each of them for all purposes in connection with these Rules.

Rules of interpretation

In these Rules, a reference to:

1. a person includes any natural person, body corporate or body unincorporate, including a company, partnership, unincorporated association, government or state;
2. the masculine gender includes the feminine;
3. an obligation to publish or cause to be published a particular document shall, unless expressly provided otherwise in these Rules, includes publishing or causing to be published in printed or electronic form.

The headings in these Rules shall not affect their interpretation.

References to legislation in these Rules shall be construed in accordance with the following provisions:

1. Federal Law is law made by the federal government of the State;
2. Dubai Law is law made by the Ruler, as applicable in the Emirate;
3. DIFC Law is law made by the Ruler as applicable in the DIFC;
4. DIFC Regulations include any rules, regulations, bylaws, or orders relating to the Centre issued by the President or the Centre Bodies.
5. these Rules are made by the Chief Justice of the DIFC Courts;
6. legislation includes rules or regulations made under legislation;
7. reference to a statutory provision includes a reference to the statutory provision as amended or re-enacted from time to time.

Pending the enactment of a DIFC Interpretation Act and subject to the express provisions of these Rules and any other DIFC legislation, the English Interpretation Act 1978 shall apply as far as necessary for the interpretation of these Rules as it applies to English subordinate legislation made after the commencement of that Act.

Application of the CPR and the Guide

If no provision is made or no appropriate form is provided by the Rules or any law in force in the DIFC, the following rules of practice and procedure shall be followed and adopted:

1. Such Rules as shall have been enacted;
2. To the extent that no Rule or Practice Direction dealing with the matter shall have been enacted, with regard to the Court of First Instance, the Guide together with any prescribed forms with such changes as the Court considers appropriate to be applied in the circumstances;
3. Insofar as the Guide does not deal with the matter or makes reference to the CPR, the CPR together with any prescribed forms with such changes as the Court considers appropriate to be applied in the circumstances;
4. With regard to the Court of Appeal, Part 52 of the CPR and any associated practice directions, as therein defined, together with any prescribed forms with such changes as the Court considers appropriate to be applied in the circumstances.
5. With regard to insolvency proceedings, the English Insolvency Rules 1986.

Time

All dates shall be ascertained in accordance with the Gregorian calendar.

A period of time expressed as a number of days shall be computed as clear days. “Clear days“ means that in computing the number of days—

1. the day on which the period begins; and
2. If the end of the period is defined by reference to an event, the day on which that event occurs are not included.

Where the specified period—

1. is 5 days or less; and
2. includes a day which is not a business day,

that day does not count.

Where the specified period is 6 days or more, both normal working days in the DIFC and non-working days in the DIFC shall be counted.

When the period specified—

1. by these Rules; or
2. by any judgment or Courts order,

for doing any act at the Registry ends on a day on which the Registry is closed, that act shall be in time if done on the next day on which the Registry is open.

Dates for compliance to be calendar dates and to include time of day

Where the Courts give a judgment, order or direction which imposes a time limit for doing any act, the last date for compliance must, wherever practicable—

1. be expressed as a calendar date; and
2. include the time of day by which the act must be done.

Where a party is required by a Rule, Practice Direction, Judgment or Order to do any act on or before a particular date, the act must be done by 4pm on that date.

Where the date by which an act must be done is inserted in any document, the date must, wherever practicable, be expressed as a calendar date.

Meaning of ‘month’ in judgments, etc.

Where ‘month’ occurs in any judgment, order, direction or other document, it means a calendar month.

Time limits may be varied by parties

Unless these Rules provide otherwise or the Court orders otherwise, the time specified by a Rule or Practice Direction or by the Court for a person to do any act may be varied by the written agreement of the parties and the Court.

Schedule to Part 2

Part 3 - Organisation of the Court

I - Judges, registrar and court staff

Power of Judge or Registrar to perform functions of the Court

Where these Rules provide for the Court to perform any act then, except where an enactment, Rule or Practice Direction provides otherwise, that act may be performed by any Judge or Registrar.

Allocation of cases to levels of judiciary

Only the Registrar may make the orders specified in Rules 3.6 to 3.13. Wherever the Registrar has jurisdiction, he may refer the matter to a Judge instead of dealing with it himself.

Subject to Rules 3.6 and 3.7 search orders (Rule 25.1(8)), freezing orders (Rule 25.1(6)), an ancillary order under Rule 25.1(7) and orders authorising a person to enter land to recover, inspect or sample property (Rule 25.1(4)) may only be made by a Judge.

Where the Court has made a freezing order under Rule 25.1(6) and has ordered a person to make a witness statement or affidavit about his assets and to be cross-examined on its contents, unless the Judge directs otherwise, the cross-examination may take place before the Registrar, or if a Judge or the Registrar directs, before an examiner of the Court.

Except where paragraphs 3.6, 3.7 or 3.9 apply, injunctions and orders relating to injunctions, including orders for specific performance where these involve an injunction must be made by a Judge.

Except where paragraph 3.9 applies, the Registrar may only make an injunction:

1. in cases of urgency where no Judge can be made available within the timescale requested by the applicant and then only:
   1. if the Registrar considers it necessary in the interests of justice; and
   2. to the extent necessary to preserve the status quo until such time as a judge can made available;
2. in terms agreed by the parties;
3. in connection with or ancillary to a charging order;
4. in connection with or ancillary to an order appointing a receiver by way of equitable execution.

The Registrar may make an order varying or discharging an injunction or undertaking given to the Court if all parties to the proceedings have consented to the variation or discharge.

The Registrar may not make orders or grant interim remedies:

1. relating to a claim for judicial review, except for interim applications;
2. relating to any appeal, except as provided in Rule 44.148.

The Registrar may, subject to any Practice Direction, try a case with the consent of the parties. Restrictions on the trial jurisdiction of the Registrar do not prevent him from hearing applications for immediate judgment or, if the parties consent, for the determination of a preliminary issue.

The Registrar may assess the damages or sum due to a party under a judgment without limit as to the amount.

With the consent of the Chief Justice, the Registrar may:

1. approve compromises on behalf of a person under a disability and on behalf of absent, unborn and unascertained persons;
2. make declarations;
3. make final orders under Article 28(3) of DIFC Law No. 11/2005 or Article 30(6) of DIFC Law No. 11/2005, the Trust Law, except for the removal of protective trusts where the interest of the principal beneficiary has not failed or determined;
4. where the proceedings are brought by a Part 8 claim form, determine any question of law or as to the construction of a document which is raised by the claim form;
5. give permission to executors, administrators and trustees to bring or defend proceedings or to continue the prosecution or defence of proceedings, and grant an indemnity for costs out of the trust estate, in straightforward cases;
6. grant an indemnity for costs out of the assets of a company on the application of minority shareholders bringing a derivative action, in straightforward cases.

Where a winding-up order has been made against a company, any proceedings against the company by or on behalf of debenture holders may be dealt with by the Registrar.

Subject to Rules 3.3 to 3.12 and to any other Rule or Practice Direction, the Registrar may exercise the chambers jurisdiction of the Court.

Court staff

Where these Rules require or permit the Court to perform an act of a formal or administrative character, that act may be performed by a Court Officer.

A requirement that a Court Officer carry out any act at the request of a party is subject to the payment of any fee required by a fees order for the carrying out of that act.

II - Practice directions

Directions as to the practice and procedure of the Court may be made by the Chief Justice.

These Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.

The power of the Chief Justice to make directions under Rule 3.16 includes power to vary or revoke directions made by him or any other person, and to make different provision for different cases or different areas, including different provision for a specific court, circuit or tribunal, or for specific proceedings, or a specific jurisdiction, specified in the directions.

References in Rules 3.16 and 3.18 to the Chief Justice include any person authorised by him to act on his behalf.

III - Court documents

Court documents to be sealed

The Court must seal the following documents on issue:

1. all process issued by the Court;
2. any order issued by the Court; and
3. any other document which a Rule or Practice Direction requires it to seal.

The Court may place the seal on the document:

1. by hand; or
2. by printing a facsimile of the seal on the document whether electronically or otherwise.

A document purporting to bear the Court's seal shall be admissible in evidence without further proof.

Court documents to be signed

The following documents must be signed on issue by a Judge or the Registrar or by a Court Officer acting with the authority of the Registrar:

1. all process issued by the Court;
2. any order issued by the Court; and
3. any other document which is required by a Rule or Practice Direction to be so signed.

IV - Venue and sittings

Court's discretion as to where it deals with cases

The Court may, with the consent of the parties, deal with a case at any place that it considers appropriate and may at any stage of the proceedings direct that:

1. the proceedings or a part of the proceedings be conducted or continued at a place specified in the order, subject to such conditions as the DIFC Court may impose;
2. the Court Law (DIFC Law No. 10/2004) shall continue to apply to the proceedings in that venue; and
3. these Rules shall continue to apply.

Court Registry

The Court Registry is located at the Ground Floor, Building 4, Gate District, Dubai, UAE.

Sittings of the Court

Sittings of the Court will take place on dates to be published on the Court's website (www.difccourts.ae (opens in a new tab)) and on such other dates as may be specified by the Chief Justice or the Registrar on his behalf.

In the interest of justice, the Court may hear an application by video link, telephone, electronic device or other appropriate means. Attention is drawn to the Video-conferencing Protocol and the guidance on telephone hearings at Schedules B and C to Part 23.

Sittings of the Court will generally take place in the courtroom located at the Ground Floor, Building 4, The Gate District, Dubai, UAE.

V - Communicating with the court by e-mail

Guidance on communicating with the Court by e-mail is set out in the Schedule to this Part.

Schedule to Part 3 - Communicating with the court by email

Documents for which E-mail may be used

1. Where possible, parties should file documents online using the Courts' e-filing system. Where that is not possible, save as set out in paragraphs 3 and 4 below, e-mail may be used to communicate with the Registry in relation to any matter.

1A. Should E-mail be used for the submission of inter alia, documents, materials and information that require the payment of an accompanying fee, the submitted email's contents and attachments will be considered incomplete and thus unprocessed by the Registry until the requisite fee has been paid and received by the Courts in full.

Restrictions

2. A party should not use e-mail to issue a claim unless the procedure set out at RDC 9.64 applies, although parties are encouraged to use the e-filing facilities available using www.difccourts.ae (opens in a new tab).

2A. A party should not use email to file bundles prepared for hearings. Email may be used to make minor additions (of 20 pages or less) to any bundles already lodged with the Court, but they must be accompanied by clear instructions as to where such additions are to be inserted.

3. A large document may not be sent by email. A large document is

4. any document which, when scanned as a PDF file, exceeds 10MB in size; or,

5. any document which is incapable of being scanned in accordance with paragraph 16 below.

6. Where a party sends or lodges a document by e-mail he should still comply with any Rule or Practice Direction requiring the document to be served on any other person.

7. Nothing in this Schedule shall affect or otherwise alter any obligation on a party or his legal representative to file any document or bundle of documents with the Court or to serve any document or bundle of documents on any other party, but only the manner in which documents are filed with the Court.

8. Nothing in this Section requires any person to accept service of a document by email.

Sending E-mails to the Court

7. For all correspondence for the Registry, the address is: registry@difccourts.ae

The subject line

8. The subject line of the e-mail should contain only the following information which should be in the following order:

9. First, the claim number;

10. Second, the proper title of the claim (abbreviated as necessary) with the claimant named first and the defendant named second.

Form and content of the E-mail

9. Any e-mail filing with the Court must include the following information in the covering e-mail itself:

10. the name of the individual who has sent the e-mail and his firm;

11. the fullest possible contact details for the individual and the firm of which he is a member, ordinarily including —

    1. the full postal address;
    2. a landline telephone number (and a direct number if possible);
    3. a fax number (if applicable);
    4. a professional e-mail address;
    5. a business mobile or cellular telephone number (if applicable);
    6. the name of an alternative person who may be contacted if the originator of the e-mail is unavailable;

12. a short description of each document which is being filed with the Court as an attachment to the e-mail;

13. if appropriate, the name of the Judge before whom the e-mail and any attachment is intended to be placed.

14. Any e-mail message sent to the Court must be in plain text and not in rich text or HTML format.

15. Where a party files a document by e-mail, he should not send a hard copy in addition, unless there are good reasons for so doing or a Rule or the Court requires it.

16. Where a time limit applies, it remains the responsibility of the party to ensure that the document is filed in time. Parties are advised to allow for delays or downtime on their server or the servers used by the Court.

Attachments

13. Any attachment must comply with the following technical requirements:

14. in order to preserve the legibility and original pagination of documents filed by e-mail all documents filed electronically with the Court must be sent as a PDF file attachment (unless otherwise directed). Any document purporting to be filed by e-mail in any other format shall be treated by the Court as not having been received or filed; and

15. all documents e-mailed to the Court must be scanned as A4 pages with margins of at least 1 inch. All documents prepared by the parties for filing with the Court electronically should be paginated. Documents prepared using Word, WordPerfect or other software packages should be converted to PDF format either by scanning a physical copy of the document, or by using a PDF printer driver.

Receipt of E-mail by the Court

14. A document is not filed until the e-mail is received by the Court at the addressee's computer terminal, whatever time it is shown to have been sent.
15. The time of receipt of an e-mail at the addressee's computer terminal will be recorded.
16. If an e-mail is received after 4 p.m. it will be treated as having been received on the next day the Court office is open.
17. Where a party makes an application by filing an application notice by email and that application attracts a fee, save in cases of extreme urgency, the application will not be considered filed until the fee is paid.
18. The Registry will ackowledge receipt of emails. If a response to the subject matter of the e-mail is not received within a reasonable period, the sender should assume that the Court has not received it and should send the e-mail again, or file the document by another means.
19. Parties should not telephone to enquire as to the receipt of an e-mail. They should observe the procedure set out in paragraph 18.
20. Exceptionally, if a document which is filed with the Court by email requires urgent attention, a party may contact the Court by telephone, but such contact should be rare.

Replies to E-mails sent to the Court

21. The Court will normally send any reply by e-mail to documents or correspondence sent by e-mail.

22. All replies will be sent to the e-mail address from which the e-mail has been sent. If the sender wishes the reply to be copied to other parties or to another e-mail address used by the sender of the message, such e-mail addresses must be specified in the copy line.

23. The Court will not send copies to clients or others not on the record; the copy line must therefore not contain the addresses of such persons.

24. The e-mail should also contain in the body of the e-mail the name and telephone number of the sender.

25. It is important that legal representatives consider putting in place a system to deal with the absence of the individual who has sent the e-mail and to whom the Court will ordinarily reply. Two possible solutions are:

26. a central mail box within each firm, either from which the e-mail is sent to the Court (and which will therefore receive the reply) or to which it is copied by the individual sender who sends it direct to the Court (and who will receive a copy of the reply);

27. a second individual e-mail address within the firm to which the reply will be copied so that any reply can be monitored.

Part 4 - The Court's case management powers

The Court's general powers of management

The list of powers set out below is in addition to any powers given to the Court by any other Rule or Practice Direction or by any other enactment or any powers it may otherwise have.

Except where these Rules provide otherwise, the Court may:

1. extend or shorten the time for compliance with any Rule, Practice Direction or Court order (even if an application for extension is made after the time for compliance has expired);
2. adjourn or bring forward a hearing;
3. require a party or a party's legal representative to attend the Court;
4. hold a hearing and receive evidence by telephone or by using any other method of direct oral communication;
5. direct that part of any proceedings (such as a counterclaim) be dealt with as separate proceedings;
6. stay the whole or part of any proceedings or judgment either generally or until a specified date or event;
7. consolidate proceedings;
8. try two or more claims on the same occasion;
9. direct a separate trial of any issue;
10. decide the order in which issues are to be tried;
11. exclude an issue from consideration;
12. dismiss or give judgment on a claim after a decision on a preliminary issue;
13. order any party to file and serve an estimate of costs; or
14. take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

When the Court makes an order, it may:

1. make it subject to conditions, including a condition to pay a sum of money into Court; and
2. specify the consequence of failure to comply with the order or a condition.

The Court may order a party to pay a sum of money into Court if that party has, without good reason, failed to comply with a Rule or Practice Direction.

When exercising its power under Rule 4.4 the Court must have regard to:

1. the amount in dispute; and
2. the costs which the parties have incurred or which they may incur.

Where a party pays money into Court following an order under Rules 4.3 or 4.4 the money shall be security for any sum payable by that party to any other party in the proceedings.

A power of the Court under these Rules to make an order includes a power to vary or revoke the order.

Court Officer's power to refer to a Judge

Where a step is to be taken by a Court Officer:

1. the Court Officer may consult a Judge before taking that step;
2. the step may be taken by a Judge instead of the Court Officer.

Court's power to make order of its own initiative

Except where a Rule, Practice Direction or some other enactment provides otherwise, the Court may exercise its powers on an application or of its own initiative.

Where the Court proposes to make an order of its own initiative:

1. it may give any person likely to be affected by the order an opportunity to make representations; and
2. where it does so it must specify the time by and the manner in which the representations must be made.

Where the Court proposes:

1. to make an order of its own initiative; and
2. to hold a hearing to decide whether to make the order,

it must give each party likely to be affected by the order at least 3 days' notice of the hearing.

The Court may make an order of its own initiative, without hearing the parties or giving them an opportunity to make representations.

Where the Court has made an order under Rule 4.12–

1. a party affected by the order may apply to have it set aside, varied or stayed; and
2. the order must contain a statement of the right to make such an application.

An application under Rule 4.13(1) must be made:

1. within such period as may be specified by the Court; or
2. if the Court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

Power to strike out a statement of case

In Rules 4.16 to 4.24, reference to a statement of case includes reference to part of a statement of case.

The Court may strike out a statement of case if it appears to the Court:

1. that the statement of case discloses no reasonable grounds for bringing or defending the claim;
2. that the statement of case is an abuse of the Court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
3. that there has been a failure to comply with a Rule, Practice Direction or Court order.

When the Court strikes out a statement of case it may make any consequential order it considers appropriate.

Where:

1. the Court has struck out a claimant's statement of case;
2. the claimant has been ordered to pay costs to the defendant; and
3. before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,

the Court may, on the application of the defendant, stay that other claim until the costs of the first claim have been paid.

Rule 4.16 does not limit any other power of the Court to strike out a statement of case.

Judgment without trial after striking out

Rules 4.21 to 4.24 apply where:

1. the Court makes an order which includes a term that the statement of case of a party shall be struck out if the party does not comply with the order; and
2. the party against whom the order was made does not comply with it.

A party may obtain judgment with costs by filing a request for judgment if:

1. the order referred to in Rule 4.20(1) relates to the whole of a statement of case; and
2. where the party wishing to obtain judgment is the claimant, the claim is for
   1. a specified amount of money;
   2. an amount of money to be decided by the Court;
   3. delivery of goods where the claim form gives the defendant the alternative of paying their value; or
   4. any combination of these remedies.

Where judgment is obtained in a case to which Rule 4.21(2)(c) applies, it will be judgment requiring the defendant to deliver goods, or (if he does not do so) pay the value of the goods as decided by the Court (less any payments made).

The request must state that the right to enter judgment has arisen because the Court's order has not been complied with.

A party must make an application in accordance with Part 23 if he wishes to obtain judgment in a case to which Rule 4.21 does not apply.

Setting aside judgment entered after striking out

A party against whom the Court has entered judgment under Rule 4.21 may apply to the Court to set the judgment aside.

An application under Rule 4.25 must be made not more than 14 days after the judgment has been served on the party making the application.

If the right to enter judgment had not arisen at the time when judgment was entered, the Court must set aside the judgment.

If the application to set aside is made for any other reason, Rule 4.49 (relief from sanctions) shall apply.

Sanctions for non-payment of fees

The Court will serve a notice on the claimant requiring payment of a Court fee if, at the time the fee is due, the claimant has not paid it.

The notice will specify the date by which the claimant must pay the fee.

If the claimant does not pay the fee by the date specified in the notice:

1. the claim may be struck out without further order of the Court; and
2. the claimant shall be liable for the costs which the defendant has incurred unless the Court orders otherwise.

If:

1. a claimant applies to have the claim reinstated; and
2. the Court grants relief,

the relief shall be conditional on the claimant paying the fee within the period specified in Rule 4.33.

The period referred to in Rule 4.32 is:

1. if the order granting relief is made at a hearing at which the claimant is present or represented, 2 days from the date of the order;
2. in any other case, 7 days from the date of service of the order on the claimant.

Rules 4.35 to 4.39 apply where a defendant files a counterclaim without payment of any fee specified.

The Court will serve a notice on the defendant requiring payment of the fee if, at the time the fee is due, the defendant has not paid it.

The notice will specify the date by which the defendant must pay the fee.

If the defendant does not pay the fee by the date specified in the notice, the counterclaim will automatically be struck out without further order of the Court.

If:

1. the defendant applies to have the counterclaim reinstated; and
2. the Court grants relief,

the relief will be conditional on the defendant paying the fee within the period specified in Rule 4.39.

The period referred to in Rule 4.38 is:

1. if the order granting relief is made at a hearing at which the defendant is present or represented, 2 days from the date of the order;
2. in any other case, 7 days from the date of service of the order on the defendant.

Sanctions for dishonoured cheque

Rules 4.41 to 4.44 apply where any fee is paid by cheque and that cheque is subsequently dishonoured.

The Court will serve a notice on the paying party requiring payment of the fee which will specify the date by which the fee must be paid.

If the fee is not paid by the date specified in the notice:

1. where the fee is payable by the claimant, the claim will automatically be struck out without further order of the Court;
2. where the fee is payable by the defendant, the defence will automatically be struck out without further order of the Court,

and the paying party shall be liable for the costs which any other party has incurred unless the Court orders otherwise.

If:

1. the paying party applies to have the claim or defence reinstated; and
2. the Court grants relief,

the relief shall be conditional on that party paying the fee within the period specified in Rule 4.44.

The period referred to in Rule 4.43 is:

1. if the order granting relief is made at a hearing at which the paying party is present or represented, 2 days from the date of the order;
2. in any other case, 7 days from the date of service of the order on the paying party.

For the purposes of Rules 4.41 to 4.44, “claimant” includes a party making an additional claim.

Sanctions have effect unless defaulting party obtains relief

Where a party has failed to comply with a Rule, Practice Direction or Court order, any sanction for failure to comply imposed by the Rule, Practice Direction or Court order has effect unless the party in default applies for and obtains relief from the sanction.

Where the sanction is the payment of costs, the party in default may only obtain relief by appealing against the order for costs.

Where a Rule, Practice Direction or Court order:

1. requires a party to do something within a specified time, and
2. specifies the consequence of failure to comply,

the time for doing the act in question may not be extended by agreement between the parties.

Relief from sanctions

On an application for relief from any sanction imposed for a failure to comply with any Rule, Practice Direction or Court order the Court will consider all the circumstances including:

1. the interests of the administration of justice;
2. whether the application for relief has been made promptly;
3. whether the failure to comply was intentional;
4. whether there is a good explanation for the failure;
5. the extent to which the party in default has complied with other Rules, Practice Directions and Court orders;
6. whether the failure to comply was caused by the party or his legal representative;
7. whether the trial date or the likely trial date can still be met if relief is granted;
8. the effect which the failure to comply had on each party; and
9. the effect which the granting of relief would have on each party.

An application for relief must be supported by evidence.

General power of the Court to rectify matters where there has been an error of procedure

Where there has been an error of procedure such as a failure to comply with a Rule or Practice Direction:

1. the error does not invalidate any step taken in the proceedings unless the Court so orders; and
2. the Court may make an order to remedy the error.

Part 5 - Forms

The Chief Justice may by Practice Direction prescribe the forms to be used in proceedings before the Court.

A form may be varied by the Court or a party if the variation is required by the circumstances of a particular case.

A form must not be varied so as to leave out any information or guidance which the form gives to the recipient.

Where these Rules require a form to be sent by the Court or by a party for another party to use, it must be sent without any variation except such as is required by the circumstances of the particular case.

Part 6 - Court documents

Preparation of documents

Where under these Rules, a document is to be prepared by the Court, the document may be prepared by the party whose document it is, unless a Court Officer otherwise directs.

Nothing in these Rules shall require a Court Officer to accept a document which is illegible, has not been duly authorised, or is unsatisfactory for some other similar reason.

Signature of documents by mechanical means

Where these Rules require a document to be signed, that requirement shall be satisfied if the signature is printed by computer or other mechanical means.

Where a replica signature is printed electronically or by other mechanical means on any document, the name of the person whose signature is printed must also be printed so that the person may be identified.

Form of documents

Statements of case and other documents drafted by a legal representative should bear his signature and if they are drafted by a legal representative as a member or employee of a firm they should be signed in the name of the firm.

Every document prepared by a party for filing or use at the Court must—

1. unless the nature of the document renders it impracticable, be on A4 paper,
2. be fully legible and should normally be typed,
3. where possible be bound securely in a manner which would not hamper filing or otherwise each page should be endorsed with the case number,
4. have the pages numbered consecutively,
5. be divided into numbered paragraphs,
6. have all numbers, including dates, expressed as figures, and
7. give the reference of every document mentioned that has already been filed.

Register of claims

The Court shall keep an online publicly accessible register of claims which have been issued.

Supply of documents to a party from Court records

A party to proceedings may, unless the Court orders otherwise, obtain from the records of the Court a copy of any of the following documents:

1. a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form;
2. an acknowledgment of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service;
3. a certificate of service, other than a certificate of service of an application notice or order in relation to a type of application mentioned in sub-paragraph (5) below;
4. a notice of non-service;
5. an application notice, other than in relation to:
   1. an application by a legal representative for an order declaring that he has ceased to be the legal representative acting for a party; or
   2. an application for an order that the identity of a party or witness should not be disclosed;
6. any written evidence filed in relation to an application, other than a type of application mentioned in sub-paragraph (5) above;
7. a judgment or order given or made in public (whether made at a hearing or without a hearing);
8. a statement of costs;
9. a list of documents;
10. a notice of payment into Court;
11. a notice of discontinuance;
12. a notice of change of legal representative; or
13. an appellant's or respondent's notice of appeal.

A party to proceedings may, if the Court gives permission, obtain from the records of the Court a copy of any other document filed by a party or communication between the Court and a party or another person.

Supply of documents to a non-party from Court records

Save where Rule 6.11 applies, the general rule is that a person who is not a party to proceedings may obtain from the Court records a copy of:

1. a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
2. a judgment or order given or made in public (whether made at a hearing or without a hearing).

Unless the Court orders otherwise, a non-party may not obtain information or documents from the Court records relating to insolvency proceedings before a winding-up petition has been advertised.

A non-party may, if the Court gives permission, obtain from the records of the Court a copy of any other document filed by a party, or communication between the Court and a party or another person.

A non-party may obtain a copy of a statement of case or judgment or order under Rule 6.11 only if:

1. where there is one defendant, the defendant has filed an acknowledgment of service or a defence;
2. where there is more than one defendant:
   1. all the defendants have filed an acknowledgment of service or a defence; or
   2. at least one defendant has filed an acknowledgment of service or a defence, and the Court gives permission;
3. the claim has been listed for a hearing; or
4. judgment has been entered in the claim.

The Court may, on the application of a party or of any person identified in a statement of case:

1. order that a non-party may not obtain a copy of that statement of case under Rule 6.11;
2. restrict the persons or classes of persons who may obtain a copy of that statement of case;
3. order that persons or classes of persons may only obtain a copy of that statement of case if it is edited in accordance with the directions of the Court; or
4. make such other order as it thinks fit.

A person wishing to apply for an order under Rule 6.14 must file an application notice in accordance with Part 23.

Where the Court makes an order under Rule 6.14, a non-party who wishes to obtain a copy of the statement of case, or to obtain an unedited copy of the statement of case, may apply on notice to the party or person identified in the statement of case who requested the order, for permission.

Supply of documents from Court records — General

A person wishing to obtain a copy of a document under Rules 6.9 to 6.12 must pay any prescribed fee and if the Court's permission is required, file an application notice in accordance with Part 23.

An application for an order under Rule 6.14 or for permission to obtain a copy of a document under Rules 6.9 to 6.12 may be made without notice, but the Court may direct notice to be given to any person who would be affected by its decision.

Rules 6.7 to 6.16 do not apply in relation to any proceedings in respect of which a rule or practice direction makes different provision.

Filing documents

All documents to be filed in the DIFC Courts should be submitted to the Court in electronic form only preferably through the E-Filing facility available on the DIFC Courts website, with the following exception:

1. Bundles prepared for hearings.

Electronic documents may be filed with the Courts by:

1. The E-Filing facility — this should be used unless it is impossible in the circumstances; or
2. Emailing the documents to the Registry email account at registry@difccourts.ae; or
3. Delivering any form of data storage media containing the electronic files to the Registry.

Where documents are filed by email:

1. Each email must be no larger than 10MB in size;
2. The body of the email must contain a list of all the documents attached to the email;
3. The Registry will acknowledge receipt of the email.

Where documents are filed by delivering any form of data storage media to the Court:

1. The data storage media must be accompanied by a covering letter listing all of the documents contained in the disk;
2. The Registry will acknowledge the covering letter as received once the contents of the data storage media have been checked to confirm the presence of all of the documents listed in the covering letter.

Where a document is filed in hard copy, the date on which the document was filed at Court must be recorded on the document. This may be done by a seal or a receipt stamp.

A surcharge may be imposed by the Court for documents not submitted using the E-Filing facility as per the fee schedule as amended from time to time.

Particulars of the date of delivery at Court of any document for filing and the title of the proceedings in which the document is filed shall be entered in Court records, on the Court file or on a computer record kept for the purpose. Except where a document has been delivered at the Registry through the mail, the time of delivery should also be recorded.

Applications may be made by filing an application notice by email. Save in cases of extreme urgency, where the application attracts a fee, the application will not be considered filed until the fee is paid.

Where the Court orders any document to be lodged in Court, the document must, unless otherwise directed, be deposited in the Registry.

Sending documents

A document filed, lodged or held in the Registry shall not be taken out of the office without the permission of the Court except in accordance with Rules 6.30 to 6.35 below.

Where a document filed, lodged or held in the Registry is required to be produced to any court, tribunal or arbitrator, the document may be produced by sending it by courier (together with a Certificate as set out below) to the court, tribunal or arbitrator.

On receipt of the request the Court Officer will submit the same to the Registrar who may direct that the request be complied with. Before giving a direction the Registrar may require to be satisfied that the request is made in good faith and that the document is required to be produced for the reasons stated. The Registrar may also direct that, before the document is sent, an official copy of it is made and filed in the Registry at the expense of the party requiring the document to be produced.

On the direction of the Registrar the Court Officer shall send the document by courier addressed to the court, tribunal or arbitrator, with:

1. an envelope stamped and addressed for use in returning the document to the Court;
2. a Certificate as set out below;
3. a covering letter describing the document, stating at whose request and for what purpose it is sent and containing a request that the document be returned to the Court in the enclosed envelope as soon as the court, tribunal or arbitrator no longer requires it.

It shall be the duty of the court, tribunal or arbitrator to whom the document was sent to keep it in safe custody, and to return it by courier to the Court as soon as the court, tribunal or arbitrator no longer requires it.

A record shall be kept of each document sent and the date on which it was sent and the court, tribunal or arbitrator to whom it was sent and the date of its return. It shall be the duty of the Court Officer who has signed the certificate as set out below to ensure that the document is returned within a reasonable time and to make inquiries and report to the Registrar if the document is not returned, so that steps may be taken to secure its return.

Notwithstanding the above, the Registrar may direct a Court Officer to attend the court, tribunal or arbitrator for the purpose of producing the document.

Form of Request

Form of Certificate

Part 7 - How to start proceedings — the claim form

How to start proceedings

Except as provided by a Practice Direction proceedings must be started by a claim form under Part 7 or Part 8 using Form P7/01 or Form P8/01 respectively.

If a claimant wishes his claim to proceed under Part 8, or if the claim is required to proceed under Part 8, the claim form should so state. Otherwise the claim will proceed under Part 7.

Proceedings are started when the Court issues a claim form at the request of the claimant.

A claim form is issued on the date entered on the form by the Court.

Date of start of proceedings

Where the claim form as issued was received in the Registry on a date earlier than the date on which it was issued by the Court , the claim is ‘brought’ for the purposes of limitation on that earlier date.

The date on which the claim form was received by the Registry will be recorded by a date stamp either on the claim form held on the Court file or on the letter that accompanied the claim form when it was received by the Court.

An enquiry as to the date on which the claim form was received by the Registry should be directed to a Court Officer.

Parties proposing to start a claim which is approaching the expiry of the limitation period should recognise the potential importance of establishing the date the claim form was received by the Registry and should themselves make arrangements to record the date.

Claims by and against partnerships within the DIFC or Dubai

Rules 7.9 to 7.11 apply to claims that are brought by or against two or more persons who:

1. were partners; and
2. carried on that partnership business within the DIFC or Dubai,

at the time when the cause of action accrued.

For the purposes of Rules 7.9 and 7.11, “partners” includes persons claiming to be entitled as partners and persons alleged to be partners.

Where that partnership has a name, unless it is inappropriate to do so, claims must be brought in or against the name under which that partnership carried on business at the time the cause of action accrued.

Partnership membership statements

In Rules 7.13 and 7.14 a “partnership membership statement” is a written statement of the names and last known places of residence of all the persons who were partners in the partnership at the time when the cause of action accrued, being the date specified for this purpose in accordance with Rule 7.14.

If the partners are requested to provide a copy of a partnership membership statement by any party to a claim, the partners shall do so within 14 days of receipt of the request.

In that request the party seeking a copy of a partnership membership statement must specify the date when the relevant cause of action accrued.

Persons carrying on business in another name

Rule 7.16 applies where:

1. a claim is brought against an individual;
2. that individual carries on a business within the DIFC or Dubai (but need not himself be within the DIFC or Dubai); and
3. that business is carried on in a name other than his own name (“the business name”).

Where this Rule applies, the claim may be brought against the business name as if it were the name of a partnership.

Right to use one claim form to start two or more claims

A claimant may use a single claim form to start all claims which can be conveniently disposed of in the same proceedings.

Title of proceedings

The claim form and every other statement of case must be headed with the title of the proceedings. The title should state:

1. the number of proceedings,
2. the circuit or division of the Court (if any) or Tribunal in which they are proceeding,
3. the full name of each party,
4. his status in the proceedings (i.e. claimant/defendant).

Where there is more than one claimant and/or more than one defendant, the parties should be described in the title as follows:

1. AB
2. CD
3. EF Claimants

and

1. GH
2. IJ
3. KL Defendants

Service of claim form

After a claim form has been issued, it must be served on the defendant by the claimant:

1. within 4 months after the date of issue where the claim form is to be served within the DIFC or Dubai; and
2. within 6 months after the date of issue where the claim form is to be served out of the DIFC or Dubai.

Extension of time for serving a claim form

The claimant may apply for an order extending the period within which the claim form may be served.

The general rule is that an application to extend the time for service must be made:

1. within the period for serving the claim form specified by Rule 7.20; or
2. where an order has been made extending the period within which the claim form may be served, within the period for service specified by that order.

If the claimant applies for an order to extend the time for service of the claim form after the end of the periods specified by Rule 7.22 the Court may make such an order only if:

1. the Court has been unable to serve the claim form; or
2. the claimant has taken all reasonable steps to serve the claim form but has been unable to do so; and
3. in either case, the claimant has acted promptly in making the application.

An application for an order extending the time for service must be made in accordance with Part 23 and supported by evidence stating:

1. all the circumstances relied on,
2. the date of issue of the claim,
3. the expiry date of any Rule 7.21 extension, and
4. a full explanation as to why the claim has not been served.

The application may be made without notice.

Application by defendant for service of claim form

Where a claim form has been issued against a defendant, but has not yet been served on him, the defendant may serve a notice on the claimant requiring him to serve the claim form or discontinue the claim within a period specified in the notice.

The period specified in a notice served under Rule 7.26 must be at least 14 days after service of the notice.

If the claimant fails to comply with the notice, the Court may, on the application of the defendant:

1. dismiss the claim; or
2. make any other order it thinks just.

Statement of truth

The claim form and, where they are not included in the claim form, the particulars of claim, must be verified by a statement of truth in accordance with Part 22.

The form of the statement of truth is as follows:

‘[I believe][the claimant believes] that the facts stated in [this claim form] [these particulars of claim] are true.’

Particulars of claim

If particulars of claim are not contained in or served with the claim form:

1. the claim form must state that, if an acknowledgment of service is filed which indicates an intention to defend the claim, particulars of claim will follow;
2. the claimant must serve particulars of claim within 28 days of the filing of an acknowledgment of service which indicates an intention to defend.

If the claimant is claiming interest, he must:

1. include a statement to that effect; and
2. give the details set out in Rule 17.18,

in both the claim form and the particulars of claim.

Where the claimant serves particulars of claim separately from the claim form in accordance with Rule 7.31(2) he must within 7 days of service on the defendant, file a copy of the particulars together with a certificate of service.

All claim forms and counterclaims must state:

1. the law which the claimant maintains governs the dispute. The defendant must expressly agree or disagree with that assertion (in the acknowledgment of service form); and
2. the law which the claimant maintains gives rise to the jurisdiction of the DIFC Courts in respect of their claim. The defendant must expressly agree or disagree with that assertion (in the acknowledgment of service form).

When the claim form is served on a defendant, it must be accompanied by a cover letter indicating that: (a) a form for defending the claim; (b) a form for admitting the claim or; (c) a form for acknowledging service must be filed by the defendant using the Court's e-filing system.

Where the claimant is using the procedure set out in Part 8 (alternative procedure for claims), the claimant must serve with the claim form a cover letter indicating that a form for defending the claim, a form for admitting the claim or a form for acknowledging service must subsequently be filed by the defendant using the Court's e-filing system.

Fixed date and other claims

A Practice Direction:

1. may set out the circumstances in which the Court may give a fixed date for a hearing when it issues a claim;
2. may list claims in respect of which there is a specific claim form for use and set out the claim form in question; and
3. may disapply or modify these Rules as appropriate in relation to the claims referred to in sub-paragraphs (1) and (2) above.

Part 8 - Alternative procedure for claims

Types of claim in which Part 8 procedure may be followed

A claimant may use Part 8 procedure where:

1. he seeks the Court's decision on a question which is unlikely to involve a substantial dispute of fact; or
2. a Rule or Practice Direction in relation to a specified type of proceedings requires or permits the use of the Part 8 procedure.

Rule 8.1 does not apply if a Rule or Practice Direction provides that the Part 8 procedure may not be used in relation to the type of claim in question.

Where it appears to a Court Officer that a claimant is using the Part 8 procedure inappropriately, he may refer the claim to a Judge for the Judge to consider the point.

The Court may at any stage order the claim to continue as if the claimant had not used the Part 8 procedure and, if it does so, the Court may give any directions it considers appropriate.

Application of Part 8 and other Rules and Practice Directions

Part 8 contains Rules applicable to all claims, including those to which Part 8 applies. Those rules and directions should be applied where appropriate.

Where Part 8 procedure is followed:

1. provision is made in this Part for the matters which must be stated in the claim form and the defendant is not required to file a defence and therefore:
   1. Part 16 (defence and reply) does not apply;
   2. Part 17 (statements of case) does not apply;
   3. any time limit in these Rules which prevents the parties from taking a step before a defence is filed does not apply;
   4. the requirement under Rule 7.35 to serve on the defendant a form for defending the claim does not apply;
2. the claimant may not obtain default judgment under Part 13.
3. the claimant may not obtain judgment by request on an admission and therefore:
   1. Rules 15.14 to 15.31 do not apply; and
   2. the requirement under Rule 7.35 to serve on the defendant a form for admitting the claim does not apply.

A Rule or Practice Direction may, in relation to a specified type of proceedings:

1. require or permit the use of the Part 8 procedure; and
2. disapply or modify any of the rules set out in this Part as they apply to those proceedings.

Contents of the claim form

Where the claimant uses Part 8 procedure the claim form (Form P8/01) should be used and must state:

1. that this Part applies;
2. the question which the claimant wants the Court to decide; or the remedy which the claimant is seeking and the legal basis for the claim to that remedy;
3. if the claim is being made under an enactment, what that enactment is;
4. if the claimant is claiming in a representative capacity, what that capacity is; and
5. if the defendant is sued in a representative capacity, what that capacity is.

Issue of claim form without naming defendants

A Practice Direction may set out circumstances in which a claim form may be issued under this Part without naming a defendant.

The Practice Direction may set out those cases in which an application for permission must be made by application notice before the claim form is issued.

The application notice for permission:

1. need not be served on any other person; and
2. must be accompanied by a copy of the claim form that the applicant proposes to issue.

Where the Court gives permission it will give directions about the future management of the claim.

Acknowledgment of service

The defendant must:

1. file an acknowledgment of service in Form P8/02 not more than 14 days after service of the claim form; and
2. serve the acknowledgment of service on the claimant and any other party.

The acknowledgment of service must state:

1. whether the defendant contests the claim; and
2. if the defendant seeks a different remedy from that set out in the claim form, what that remedy is.

The following rules of Part 11 (acknowledgment of service) apply:

1. Rule 11.6 (exceptions to the period for filing an acknowledgment of service); and
2. Rule 11.8 (contents of acknowledgment of service).

Consequence of not filing an acknowledgment of service

Where:

1. the defendant has failed to file an acknowledgment of service; and
2. the time period for doing so has expired;

the defendant may attend the hearing of the claim but may not take part in the hearing unless the Court gives permission.

Procedure where defendant objects to use of the Part 8 procedure

Where the defendant contends that the Part 8 procedure should not be used because:

1. there is a substantial dispute of fact; and
2. the use of the Part 8 procedure is not required or permitted by a Rule or Practice Direction;

he must state his reasons when he files his acknowledgment of service. If the statement of reasons includes matters of evidence, it should be verified by a statement of truth.

When the Court receives the acknowledgment of service and any written evidence it will give directions as to the future management of the case.

Managing the claim

The Court may give directions immediately after a Part 8 claim form is issued, either on the application of a party or on its own initiative.

Where the Court does not fix a hearing date when the claim form is issued, it will give directions for the disposal of the claim as soon as practicable after the defendant has acknowledged service of the claim form or, as the case may be, after the period for acknowledging service has expired.

Certain applications may not require a hearing.

The Court may convene a directions hearing before giving directions.

Filing and serving written evidence

The claimant must file any written evidence on which he intends to rely when he files his claim form.

The claimant's evidence must be served on the defendant with the claim form (unless the evidence is contained in the claim form itself).

Evidence will normally be in the form of a witness statement or an affidavit but a claimant may rely on the matters set out in his claim form provided that it has been verified by a statement of truth.

A defendant who wishes to rely on written evidence must file it when he files his acknowledgment of service.

If he does so, he must also, at the same time, serve a copy of his evidence on the other parties.

The claimant may, within 14 days of service of the defendant's evidence on him, file further written evidence in reply.

If he does so, he must also, within the same time limit, serve a copy of his evidence on the other parties.

A party may apply to the court for an extension of time to serve and file evidence or for permission to serve and file additional evidence.

The parties may, subject to the following provisions, agree in writing on an extension of time for serving and filing evidence.

An agreement extending time for a defendant to file evidence:

1. must be filed by the defendant at the same time as he files his acknowledgement of service; and
2. must not extend time by more than 14 days after the defendant files his acknowledgement of service.

An agreement extending time for a claimant to file evidence in reply must not extend time to more than 28 days after service of the defendant's evidence on the claimant.

Evidence — General

No written evidence may be relied on at the hearing of the claim unless:

1. it has been served in accordance with Rules 8.23 to 8.31; or
2. the Court gives permission.

The Court may require or permit a party to give oral evidence at the hearing.

The Court may give directions requiring the attendance for cross-examination of a witness who has given written evidence.

Additional claims

Where Part 8 procedure is used, Part 21 (counterclaims and other additional claims) applies except that a party may not make an additional claim (as defined by Rule 21.2) without the Court's permission.

Pre-action applications

All applications made before a claim is commenced should be made under this Part, unless the Court orders otherwise.

The written evidence in support of such an application must state that the claimant intends to bring proceedings.

Part 9 - Service

I - General rules about service

Part 9 Rules about service apply generally

The Rules in this Section of this Part apply to the service of documents in the DIFC and Dubai, except where:

1. any other enactment, a Rule in another Part, or a Practice Direction makes a different provision; or
2. the Court orders otherwise.

Methods of service — General

A document may be served by any of the following methods:

1. personal service, in accordance with Rules 9.8 to 9.13;
2. courier (or an alternative service which provides for delivery on the same or next working day);
3. leaving the document at a place specified in Rules 9.15 to 9.21;
4. by means of electronic communication.

Where a document is to be served by electronic means:

1. the party who is to be served or his legal representative must previously have expressly indicated in writing to the party serving:
   1. that he is willing to accept service by electronic means; and
   2. the fax number, e-mail address or electronic identification to which it should be sent;
2. the following shall be taken as sufficient written indication for the purposes of sub-paragraph (1) above:
   1. a fax number set out on the writing paper of the legal representative of the party who is to be served; or
   2. a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the Court;
3. the party seeking to serve the document should first seek to clarify with the party who is to be served whether there are any limitations to the recipient's agreement to accept service by such means including the format in which documents are to be sent and the maximum size of attachments that may be received;
4. the address for service given by a party must be within the DIFC or Dubai and any fax number must be at the address for service. Where an e-mail address or electronic identification is given in conjunction with an address for service, the e-mail address or electronic identification will be considered to be at the address for service;
5. the party serving the document need not in addition send a hard copy by mail.

A company may be served by any method permitted under this Part as an alternative to:

1. service by leaving a document at or mailing it to the registered office of a company (Article 20(3) of the Companies Law (Amended and Restated), Article 20(3) of DIFC Law No. 3/2006);
2. service upon a Recognised Company by a person appointed to accept service on the behalf of that Company pursuant to Article 116(1) of the Companies Law (Amended and Restated), Article 116(1) of DIFC Law No. 3/2006.

Who is to serve

The party on whose behalf a document is to be served shall serve a document which it has issued or prepared except where:

1. a Rule or Practice Direction provides that the Court must serve the document in question;
2. the Court orders otherwise; or
3. the Court has failed to serve and has sent a notice of non-service to the party on whose behalf the document is to be served in accordance with Rule 9.37.

Where the Court is to serve a document, it is for the Court to decide which of the methods of service specified in Rule 9.2 is to be used.

Where a party prepares a document which is to be served by the Court, that party must file a copy for the Court, and for each party to be served.

Personal service

A document to be served may be served personally, except as provided in Rules 9.9 and 9.10.

Where a legal representative:

1. is authorised to accept service on behalf of a party; and
2. has notified the party serving the document in writing that he is so authorised;

a document must be served on the legal representative, unless personal service is required by an enactment, Rule, Practice Direction or Court order.

In civil proceedings brought before the Court to which the Centre, any of the Centre's Bodies or the Government is a party, documents required to be served before the Court may not be served personally.

A document is served personally on an individual by leaving it with that individual.

A document is served personally on a company or other corporation by leaving it with a person holding a senior position within the company or corporation. Each of the following persons is a person holding a senior position:

1. in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation, and
2. in respect of a corporation which is not a registered company, in addition to those persons set out in sub-paragraph (1), the mayor, chairman, president, town clerk or similar officer of the corporation.

A document is served personally on a partnership where partners are being sued in the name of their firm by leaving it with:

1. a partner; or
2. a person who, at the time of service, has the control or management of the partnership business at its principal place of business.

Address for service

Except as provided by Section III of this Part, a document must be served within the DIFC or Dubai.

A party must give an address for service within the DIFC or Dubai. A physical address in Dubai or the UAE will not be required if an email address is given.

Where a party:

1. does not give the business address of his legal representative as his address for service; and
2. resides or carries on business within the DIFC or Dubai;

he must give his residence or place of business as his address for service.

Any document to be served:

1. by courier (or an alternative service which provides for delivery on the same or next working day);
2. by leaving it at the place of service; or
3. by means of electronic communication;

must be sent or transmitted to, or left at, the address for service given by the party to be served.

Where:

1. a legal representative is acting for the party to be served; and
2. the document to be served is not the claim form;

the party's address for service is the business address of his legal representative.

Where:

1. no legal representative is acting for the party to be served; and
2. the party has not given an address for service,

the document must be sent or transmitted to, or left at, the place shown in the following table.

Rules 9.14 to 9.19 do not apply where an order made by the Court under Rule 9.31 (service by an alternative method) specifies where the document in question may be served.

A party or his legal representative who changes his address for service shall give notice in writing of the change as soon as it has taken place to the Court and every other party.

Service of documents brought before the Court to which the Centre or any of the Centre's Bodies or the Government is a party.

Service of documents brought before the Court to which the Centre or any of the Centre’s Bodies or the Government is a party

In proceedings brought before the Court to which the Centre, or any of the Centre's Bodies or the Government is a party, service must be effected in accordance with Part 41.

Service of documents on children and patients

The following table shows the person on whom a document must be served if it is a document which would otherwise be served on a child or a patient —

The Court may make an order permitting a document to be served on the child or patient, or on some person other than the person specified in the table in Rule 9.23.

An application for an order under Rule 9.24 may be made without notice.

The Court may order that, although a document has been served on someone other than the person specified in the table in Rule 9.23, the document is to be treated as if it had been properly served.

Considered date of service

A document which is served in accordance with these Rules or any relevant Practice Direction shall be considered to be served on the day shown in the following table:

Fax

Other electronic method

• If it is delivered, left or transmitted on a business day before 4 p.m., on that day; or
• In any other case, on the business day after the day on which it is delivered, left or transmitted.

If a document is served personally:

1. after 4 p.m., on a business day; or
2. at any time on a day which is not a business day;

it will be treated as being served on the next business day.

Translation of claim form

Where the claim form is to be served in the United Arab Emirates outside the DIFC, it must be accompanied by a certified Arabic translation of the claim form.

Every translation to be served under Rule 9.29 must be accompanied by a statement by the person making it that it is a correct translation, and the statement must include:

1. the name of the person making the translation;
2. his address; and
3. his qualifications for making a translation.

Service by an alternative method

Where it appears to the Court that there is a good reason to authorise service by a method not permitted by these Rules, the Court may make an order permitting service by an alternative method.

An application for an order permitting service by an alternative method —

1. must be supported by evidence stating
   1. the reason an order for an alternative method of service is sought; and
   2. what steps have been taken to serve by other permitted means; and
2. may be made without notice.

An order permitting service by an alternative method must specify:

1. the method of service; and
2. the date when the document will be considered to be served.

Power of Court to dispense with service

The Court may dispense with service of a document.

An application for an order to dispense with service may be made without notice.

Certificate of service

Where a Rule, Practice Direction or Court order requires a certificate of service, the certificate must state the details set out in the following table:

Notification of outcome of service by courier by the Court

Where —

1. a document to be served by the Court is served by courier; and
2. such document is returned to the Court,

the Court must send notification to the party who requested service stating that the document has been returned.

Notice of non-service by Court Bailiff

Where:

1. the Court Bailiff is to serve a document; and
2. the Court Bailiff is unable to serve it;

the Court must send notification to the party who requested service.

II - Special provisions about service of the claim form

General Rules about service subject to special Rules about service of claim form

The general rules about service are subject to the special rules about service contained in Rules 9.40 to 9.50.

Service of claim form by the Court — Defendant's address for service

Where a claim form is to be served by the Court, the claim form must include the defendant's address for service.

For the purposes of Rule 9.40, the defendant's address for service may be the business address of the defendant's legal representative if he is authorised to accept service on the defendant's behalf but not otherwise.

Certificate of service relating to the claim form

Where a claim form is served by the Court, the Court must send the claimant a notice which will include the date when the claim form is considered to be served under Rule 9.27.

Where the claim form is served by the claimant:

1. he must file a certificate of service not later than 7 days after the date for the filing by the defendant of the acknowledgment of service, unless by that date the acknowledgment of service has been filed; and
2. he may not obtain judgment in default under Part 13 unless he has filed the certificate of service.

Service of claim form by contractually agreed method

Where:

1. a contract contains a term providing that, in the event of a claim being issued in relation to the contract, the claim form may be served by a method specified in the contract; and
2. a claim form containing only a claim in respect of that contract is issued;

the claim form shall be considered to be served on the defendant if it is served by a method specified in the contract.

Should parties wish to agree in writing on an alternative address for service, such as a chosen domicile service (CDS) provider, at which to serve their claim form in the event of any future dispute, as well as any further documents in the course of the proceedings, they may do so. The chosen address for service may be located in the DIFC, Dubai or another location, provided that the parties' intention to opt for such an agreed method for service is evident in the applicable contract, or subsequent written agreement. This in no way limits parties' prerogative to nominate a lawyer to accept service of court documents on their behalf (see in this regard Rules 9.9, 9.16 and 9.18 above).

Service of claim form on agent of principal who is outside the DIFC

Where:

1. the defendant is outside the DIFC or Dubai; and
2. the conditions specified in Rule 9.47 are satisfied;

the Court may, on an application only, permit a claim form relating to a contract to be served on a defendant's agent.

The Court may not make an order under the preceding Rule unless it is satisfied that:

1. the contract to which the claim relates was entered into within the DIFC or Dubai with or through the defendant's agent; and
2. at the time of the application either the agent's authority has not been terminated or he is still in business relations with his principal.

An application under Rule 9.46:

1. must be supported by evidence setting out:
   1. full details of the contract and that it was entered into within the DIFC or Dubai with or through an agent who is either an individual residing or carrying on business within the DIFC or Dubai, or a registered company or corporation having a registered office or a place of business within the DIFC or Dubai;
   2. that the principal for whom the agent is acting was, at the time the contract was entered into and is at the time of making the application, neither an individual, registered company or corporation as described in sub-paragraph (a) above; and
   3. why service out of the DIFC or Dubai cannot be effected; and
2. may be made without notice.

An order under Rule 9.47 must state a period within which the defendant must respond to the claim.

The power conferred by this rule is additional to the power conferred by Rule 9.31 (service by an alternative method).

Where the Court makes an order under this rule, the claimant must send to the defendant copies of:

1. the order; and
2. the claim form.

III - Special provisions about service out of the DIFC or Dubai

Scope of this section

This Section contains rules about —

1. service out of the DIFC or Dubai; and
2. the procedure for serving out of the DIFC or Dubai.

Service out of the DIFC or Dubai

Given the international nature of the DIFC, permission to serve process outside the DIFC is not required, but it is the responsibility of the party serving process to ensure he complies with the rules regarding service of the place where he is seeking to effect service.

Where a claim form is to be served out of the DIFC or Dubai, it may be served by any method permitted by the law of the place in which it is to be served.

Nothing in these Rules or in any Court order shall authorise or require any person to do anything in the place where the claim form is to be served which is against the law of that place.

A defendant who wishes to dispute the Court's jurisdiction may make an application to have service set aside under Part 12.

Period for acknowledging service or admitting the claim where the claim form is served out of the DIFC or Dubai

The period for filing an acknowledgment of service or filing or serving an admission where a claim form has been served out of the DIFC or Dubai is 28 days after the service of the claim form.

Period for filing a defence where the claim form is served out of the DIFC or Dubai

The period for filing a defence where a claim form has been served out of the DIFC or Dubai is:

1. Where particulars of claim were included in or accompanied the claim form the period for serving and filing a defence is 45 days; or
2. Where particulars of claim were not included in and did not accompany the claim form, the period for serving and filing a defence is 28 days from service of the particulars of claim.

Translation of claim form

Except where Rule 9.62 applies, every copy of the claim form to be served out of the DIFC or Dubai must be accompanied by a translation of the claim form.

The translation must be:

1. in the official language of the place in which it is to be served; or
2. if there is more than one official language of that place, in any official language which is appropriate to the place where the claim form is to be served.

Every translation to be served under Rule 9.59 must be accompanied by a statement by the person making it that it is a correct translation, and the statement must include:

1. the name of the person making the translation;
2. his address; and
3. his qualifications for making a translation.

The claimant is not required to provide a translation of a claim form under Rule 9.59 where the claim form is to be served:

1. in a place where English is an official language; or
2. on a State where English is an official language of the State where the claim form is to be served.

Undertaking to be responsible for expenses of the Registrar

Every request for service out of the DIFC and Dubai through the Registrar must contain an undertaking by the person making the request:

1. to be responsible for all expenses incurred by the Registrar or foreign judicial authority; and
2. to pay those expenses to the Registrar or foreign judicial authority on being informed of the amount.

Service of documents other than the claim form

Where an application notice is to be served out of the DIFC and Dubai under this Section of this Part:

1. Rules 9.57 and 9.58 do not apply; and
2. where the person on whom the application notice has been served is not a party to proceedings, that person may make an application to the Court under Rule 12.1 as if he were a defendant and Rule 12.2 does not apply.

Proof of service

Where:

1. a hearing is fixed when the claim is issued;
2. the claim form is served on a defendant out of the DIFC and Dubai; and
3. that defendant does not appear at the hearing;

the claimant may take no further steps against that defendant until the claimant files written evidence showing that the claim form has been duly served.

IV - Service of process of other courts

Scope and definitions

This Section of this Part applies to the service in the DIFC of any court process in connection with civil or commercial proceedings in another court or tribunal.

Request for service

Process will be served where the Registrar receives:

1. a written request for service:
   1. from a consular or other authority; or
   2. from the Governor with a recommendation that service should be effected;
2. a translation of that request into English;
3. two copies of the process to be served; and
4. unless the other court or tribunal certifies that the person to be served understands the language of the process, two copies of a translation of it into English.

Method of service

The process will be served by the Court Bailiff unless the Registrar otherwise directs.

After service

The Court Bailiff must:

1. send the Registrar a copy of the process, and:
   1. proof of service; or
   2. a statement why the process could not be served; and
   3. if the Registrar directs, specify the costs incurred in serving or attempting to serve the process.

The Registrar will send the following documents to the person who requested service:

1. a certificate, sealed with the seal of the Court, stating:
   1. when and how the process was served or the reason why it has not been served; and
   2. where appropriate, an amount certified to be the costs of serving or attempting to serve the process; and
   3. a copy of the process.

V - Procedure for issue of claim form when registry closed

Procedure

The procedure is as follows:

1. The claim form must be signed by the legal representative acting on behalf of the claimant, and must not require the permission of the Court for its issue (unless such permission has already been given)
2. The legal representative causing the claim form to be issued (“the issuing legal representative”) must
   1. endorse on the claim form the endorsement shown below and sign that endorsement;
   2. send a copy of the claim form so endorsed to the Registry by email for issue under this Section; and
   3. complete and sign the certificate shown below.
3. When the Registry is next open to the public after the issue of a claim form in accordance with this procedure, the issuing legal representative or his agent shall attend and deliver to the Registry the document which was transmitted by email (including the endorsement and the certificate), or if that document has been served, a true and certified copy of it, together with as many copies as the Registry shall require and pay any required Court fees.
4. When the proper officer at the Registry has checked and is satisfied that the document delivered under sub-paragraph (3) fully accords with the document received under sub-paragraph (2), and that all proper fees for issue have been paid, he shall allocate a number to the case, and seal, mark as “original” and date the claim form with the date on which it was issued (being, as indicated below, the date when the email is recorded at the Registry as having been received).
5. As soon as practicable thereafter, the issuing legal representative shall inform any person served with the unsealed claim form of the case number, and (on request) shall serve any such person with a copy of the claim form sealed and dated under sub-paragraph (4) above and the person may, without paying a fee, inspect and take copies of the documents lodged at the Registry under sub-paragraphs (2) and (3) above.

Effect of issue following request by email

The issue of a claim form in accordance with this procedure takes place when the email is recorded at the Registry as having been received, and the claim form bearing the endorsement shall have the same effect for all purposes as a claim form issued under RDC Part 7 or 8, as the case may be. Unless otherwise ordered the sealed version of the claim form retained by the Registry shall be conclusive proof that the claim form was issued at the time and on the date stated. If the procedure set out in this Section is not complied with, the Court may declare (on its own initiative or on application) that the claim form shall be treated as not having been issued.

Endorsement

A claim form issued pursuant to a request by email must be endorsed as follows:

1. This claim form is issued under RDC Rule 9.71 and may be served notwithstanding that it does not bear the seal of the Court.
2. A true copy of this claim form and endorsement has been transmitted to the Registry, DIFC Court, Level 4, The Gate, Dubai, UAE at the time and date certified below by the undersigned legal representative.
3. It is the duty of the undersigned legal representative or his agent to attend at the Registry when it is next open to the public for the claim form to be sealed.
4. Any person upon whom this unsealed claim form is served will be notified by the undersigned legal representative of the number of the case and may require the undersigned legal representative to serve a copy of the sealed claim form and may inspect without charge the documents which have been lodged at the Registry by the undersigned legal representative.
5. I, the undersigned legal representative, undertake to the Court, to the defendants named in this claim form, and to any other person upon whom this claim form may be served:
   1. that the statement in paragraph 2 above is correct;
   2. that the time and date given in the certificate at the foot of this endorsement are correct;
   3. that this claim form is a claim form which may be issued under RDC Rule 9.71;
   4. that I will comply in all respects with the requirements of RDC Rule 9.71;
   5. that I will indemnify any person served with the claim form before it is sealed against any loss suffered as a result of the claim form being or becoming invalid in accordance with RDC Rule 9.71.

(Signed)

Legal Representative for the claimant.

[Note: the endorsement may be signed in the name of the firm rather than an individual legal representative, or by agents in their capacity as agents acting on behalf of their professional clients.]

Certificate

A legal representative who causes a claim form to be issued pursuant to a request sent by email must sign a certificate in the following form:

“I, the undersigned legal representative, certify that I have sent a copy of this claim form to the Registry by email on [enter the time and date when the email was sent].

Dated

(Signed)

Legal Representative for the claimant.”

[Note: the certificate may be signed in the name of the firm rather than an individual legal representative, or by agents in their capacity as agents acting on behalf of their professional clients.]

Part 10 - Responding to particulars of claim — General

When a defendant is served with a claim form that is not accompanied by Particulars of Claim, he may —

1. file or serve an admission in accordance with Part 15 admitting the whole of the claim;
2. where he admits only part of the claim, serve an admission in accordance with Part 15 admitting that part of the claim and file an acknowledgment of service in accordance with Part 11 in relation to the balance of the claim; or
3. where he does not admit any part of the claim, file an acknowledgment of service in accordance with Part 11.

When particulars of claim are served on a defendant, the defendant may:

1. file or serve an admission in accordance with Part 15;
2. file a defence in accordance with Part 16;

(or do both, if he admits only part of the claim); or

1. where he does not admit any part of the claim, file an acknowledgment of service in accordance with Part 11.

Part 11 - Acknowledgment of service

Acknowledgment of service

Where the claimant uses the procedure set out in Part 8 (alternative procedure for claims) this Part applies subject to the modifications set out in Rules 8.13 to 8.15.

A defendant shall file an acknowledgment of service if:

1. the claimant serves a claim form without serving particulars of claim;
2. the defendant is unable to file a defence within the period specified in Rule 16.9; or
3. the defendant wishes to dispute the Court's jurisdiction.

A defendant who wishes to acknowledge service of a claim should do so by using Form P11/01.

Consequence of not filing an acknowledgment of service

If:

1. a defendant fails to file an acknowledgment of service within the period specified in Rule 11.5; and
2. does not within that period file a defence in accordance with Part 16 or serve or file an admission in accordance with Part 15,

the claimant may obtain default judgment if Part 13 allows it.

The period for filing an acknowledgment of service

The general rule is that the period for filing an acknowledgment of service is 14 days after service of the claim form.

The general rule is subject to the following rules:

1. Rule 9.56 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the DIFC and Dubai); and
2. Rule 9.48 (which requires the Court to specify the period for responding to the particulars of claim when it makes an order under that Rule).

Notice to claimant that defendant has filed an acknowledgment of service

On filing an acknowledgement of service, the defendant must provide a copy to the claimant.

Contents of acknowledgment of service

An acknowledgment of service must:

1. be signed by the defendant or his legal representative; and
2. include the defendants' address for service.

Where the defendant is represented by a legal representative and the legal representative has signed the acknowledgment of service form, the address must be the legal representative's business address; otherwise the address for service that is given should be as set out in Rules 9.15 and 9.16.

Where the defendant is a company or other corporation, a person holding a senior position in the company or corporation may sign the acknowledgment of service on the defendant's behalf, but must state the position he holds.

Each of the following persons is a person holding a senior position:

1. in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation, and
2. in respect of a corporation which is not a registered company, in addition to those persons set out in (1), the mayor, chairman, president, town clerk or similar officer of the corporation.

Where a claim is brought against a partnership:

1. service must be acknowledged in the name of the partnership on behalf of all persons who were partners at the time when the cause of action accrued; and
2. the acknowledgment of service may be signed by any of those partners, or by any person authorised by any of those partners to sign it.

General

The defendant's name should be set out in full on the acknowledgment of service.

Where the defendant's name has been incorrectly set out in the claim form, it should be correctly set out on the acknowledgment of service followed by the words ‘described as’ and the incorrect name.

If two or more defendants to a claim acknowledge service of a claim through the same legal representative at the same time, only one acknowledgment of service need be used.

An acknowledgment of service may be amended or withdrawn only with the permission of the Court. The application must be made in accordance with Part 23 and supported by evidence.

Part 12 - Disputing the Court's jurisdiction

A defendant who wishes to:

1. dispute the Court's jurisdiction to try the claim; or
2. argue that the Court should not exercise its jurisdiction;

may apply to the Court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 11.

A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the Court's jurisdiction.

An application under this Part must:

1. be made within 14 days after filing an acknowledgment of service; and
2. be supported by evidence.

If the defendant files an acknowledgment of service and does not make an application disputing the Court's jurisdiction within the period specified in Rule 12.4:

1. he is to be treated as having accepted that the Court has jurisdiction to try the claim; and
2. if his acknowledgment of service indicates an intention to dispute jurisdiction, he will be treated as if he has not filed an acknowledgment of service for the purposes of any application for judgment in default under Part 13.

If the defendant files an acknowledgment of service indicating an intention to dispute the Court's jurisdiction, the claimant need not serve particulars of claim before the hearing of the application.

An order containing a declaration that the Court has no jurisdiction or will not exercise its jurisdiction may also make further provision including:

1. setting aside the claim form;
2. setting aside service of the claim form;
3. discharging any order made before the claim was commenced or before the claim form was served; or
4. staying the proceedings.

If on an application under this Part the Court does not make a declaration:

1. the acknowledgment of service shall cease to have effect;
2. the defendant may file a further acknowledgment of service within 14 days or such other period as the Court may direct; and
3. the Court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

If the defendant files a further acknowledgment of service in accordance with Rule 12.8(2) he shall be treated as having accepted that the Court has jurisdiction to try the claim.

If a defendant makes an application under this Part, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file:

1. in a Part 7 claim, a defence; or
2. in a Part 8 claim, any other written evidence

Part 13 - Default Judgment

Meaning of ‘Default judgment’

In these Rules, ‘default judgment’ means judgment without trial where a defendant —

1. has failed to file an acknowledgment of service; or
2. has failed to file a defence.

For the purposes of this Part, a defence includes any document purporting to be a defence.

Claims in which default judgment may not be obtained

A claimant may not obtain a default judgment —

1. where he uses the procedure set out in Part 8 (alternative procedure for claims); or
2. in any other case where a Rule or Practice Direction provides that the claimant may not obtain default judgment.

Conditions to be satisfied

The claimant may obtain judgment in default of an acknowledgment of service only if —

1. the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
2. the relevant time for doing so has expired.

Judgment in default of defence may be obtained only —

1. where an acknowledgement of service has been filed but a defence has not been filed;
2. in a counterclaim made under Rule 21.7, where a defence has not been filed,

and, in either case, the relevant time limit for doing so has expired.

The claimant may not obtain a default judgment:

1. if the defendant has applied:
   1. to have the claimant's statement of case struck out under Rule 4.16; or
   2. for immediate judgment under Part 24; and, in either case, that application has not been disposed of;
2. if the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;
3. if the claimant is seeking judgment on a claim for money and the defendant has filed or served on the claimant an admission under Rule 15.14 or 15.24 (admission of liability to pay all of the money claimed) together with a request for time to pay;
4. unless he has either filed a certificate of service under Rule 9.43 or the Defendant has filed an acknowledgment of service.

Procedure for obtaining default judgment

A claimant may obtain a default judgment by filing a request in Form P13/01 or Form P13/02.

Requests for default judgment:

1. in respect of a claim for a specified amount of money or for the delivery of goods where the defendant will be given the alternative of paying a specified sum representing their value, or for fixed costs only, must be in Form P13/01,
2. in respect of a claim where an amount of money (including an amount representing the value of goods) is to be decided by the Court, must be in Form P13/02 and
3. in every other case, must be in Form P13/02 amended as necessary to describe the judgment requested.

Nature of judgment where default judgment obtained by filing a request

Where the claim is for a specified sum of money, the claimant may specify in a request filed under Rule 13.7—

1. the date by which the whole of the judgment debt is to be paid; or
2. the times and rate at which it is to be paid by instalments.

Except where Rule 13.12 applies, a default judgment on a claim for a specified amount of money obtained on the filing of a request, will be judgment for the amount of the claim (less any payments made) and costs—

1. to be paid by the date or at the rate specified in the request for judgment; or
2. if none is specified, immediately.

Where the claim is for an unspecified amount of money a default judgment obtained on the filing of a request will be for an amount to be decided by the Court and costs.

Where the claim is for delivery of goods and the claim form gives the defendant the alternative of paying their value, a default judgment obtained on the filing of a request will be a judgment requiring the defendant to—

1. deliver the goods or (if he does not do so) pay the value of the goods as decided by the Court (less any payments made); and
2. pay costs.

The claimant's right to enter judgment requiring the defendant to deliver goods is subject to Rule 36.50 (judgment in favour of certain part owners relating to the detention of goods).

Interest

A default judgment on a claim for a specified amount of money obtained on the filing of a request may include the amount of interest claimed to the date of judgment if—

1. the claim form includes the details required by Rule 17.18;

2. where interest is claimed under

   1. Articles 118 or 119 of the Contract Law 2004 (Article 118 or Article 119 of DIFC Law No. 6/2004);
   2. Articles 17, 18 or 32 of the Law of Damages and Remedies 2005 (Articles 17, 18 or 32 of DIFC Law No. 7/2005);
   3. Article 121(b) of the Law of Obligations 2005 (Article 121(b) of DIFC Law No. 5/2005);
   4. Article 80 of the DIFC Employment Law 2005 (Article 80 of DIFC Law No. 4/2005);

   the rate is no higher than the rate of interest fixed by these Rules under Article 39(2)(a) of the Court Law (Article 39(2)(a) of DIFC Law No. 10/2004) payable on judgment debts at the date when the claim form was issued; and

3. the claimant's request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.

In any case where Rule 13.14 does not apply, judgment will be for an amount of interest to be decided by the Court.

Procedure for deciding an amount or value

Where the claimant obtains a default judgment on the filing of a request and judgment is for—

1. an amount of money to be decided by the Court;
2. the value of goods to be decided by the Court; or
3. an amount of interest to be decided by the Court when the Court enters judgment it will give any directions it considers appropriate.

Claim against more than one defendant

A claimant may obtain a default judgment on request under this Part against one of two or more defendants, and proceed with his claim against the other defendants.

Where a claimant applies for a default judgment against one of two or more defendants —

1. if the claim can be dealt with separately from the claim against the other defendants
   1. the Court may enter a default judgment against that defendant; and
   2. the claimant may continue the proceedings against the other defendants;
2. if the claim cannot be dealt with separately from the claim against the other defendants:
   1. the Court will not enter default judgment against that defendant; and
   2. the Court must deal with the application at the same time as it disposes of the claim against the other defendants.

A claimant may not enforce against one of two or more defendants any judgment obtained under this Part for delivery of goods unless—

1. he has obtained a judgment for delivery (whether or not obtained under this Part) against all the defendants to the claim; or
2. the Court gives permission.

Procedure for obtaining a default judgment for costs only

Where a claimant wishes to obtain a default judgment for costs only—

1. if the claim is for fixed costs, he may obtain it by filing a request in the relevant practice form;
2. if the claim is for any other type of costs, he must make an application in accordance with Part 23.

Where an application is made under Rule 13.20 for costs only, judgment shall be for an amount to be decided by the Court.

Evidence

On a request for default judgment the Court must be satisfied that:

1. the claim form has been served on the defendant (a certificate of service on the Court file will be sufficient evidence);
2. either the defendant has not filed an acknowledgment of service or has not filed a defence and that in either case the relevant period for doing so has expired;
3. the defendant has not satisfied the claim; and
4. the defendant has not returned an admission to the claimant under Rule 15.14 or filed an admission with the Court under Rule 15.24.

On a request where the defendant was served with the claim outside the jurisdiction and the defendant has not acknowledged service, the evidence must establish that:

1. the claim is one that the Court has power to hear and decide,
2. no other court has exclusive jurisdiction to hear and decide the claim, and
3. the claim has been properly served.

Evidence referred to in Rule 13.23 above must be by affidavit.

On an application for judgment for delivery up of goods where the defendant will not be given the alternative of paying their value, the evidence must identify the goods and state where the claimant believes the goods to be situated and why their specific delivery up is sought.

Currency

Where default judgment is given on a claim for a sum of money expressed in a currency other than US Dollars, the judgment should be for the amount of that currency with the addition of ‘or the US Dollar equivalent at the time of payment’.

Part 14 - Setting aside or varying default judgment

Cases where the Court must set aside judgment entered under Part 13

The Court must set aside a judgment entered under Part 13 if judgment was wrongly entered because—

1. in the case of a judgment in default of an acknowledgment of service, any of the conditions in Rules 13.4 and 13.6 was not satisfied;
2. in the case of a judgment in default of a defence, any of the conditions in Rules 13.5 and 13.6 was not satisfied; or
3. the whole of the claim was satisfied before judgment was entered.

Cases where the Court may set aside or vary judgment entered under Part 13

In any other case, the Court may, on such conditions as it sees fit, set aside or vary a judgment entered under Part 13 if:

1. the defendant has a real prospect of successfully defending the claim; or
2. it appears to the Court that there is some other good reason why:
   1. the judgment should be set aside or varied; or
   2. the defendant should be allowed to defend the claim.

In considering whether to set aside or vary a judgment entered under Part 13, the matters to which the Court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Application to set aside or vary judgment — Procedure

An application under Rule 14.2 (cases where the Court may set aside or vary judgment) must be supported by evidence.

Part 15 - Admissions

Making an admission

A party may admit the truth of the whole or any part of another party's case by giving notice in writing (such as in a statement of case or by letter).

Where the only remedy which the claimant is seeking is the payment of money, the defendant may also make an admission in accordance with:

1. Rule 15.14 (admission of whole claim for specified amount of money);
2. Rule 15.18 (admission of part of claim for specified amount of money);
3. Rule 15.19 (admission of liability to pay whole of claim for unspecified amount of money); or
4. Rule 15.24 (admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim).

Where the defendant makes an admission as mentioned in Rule 15.2, the claimant has a right to enter judgment.

The permission of the Court is required to amend or withdraw an admission.

How to make an admission

When the claim form is served on a defendant, the forms for responding to the claim that will accompany them will include a form for making an admission.

If the defendant wishes to make an admission in respect of the whole of a claim for a specified amount of money, the admission form or other written notice of the admission should be completed and returned to the claimant within the period set out in Rule 15.8.

If the defendant wishes to make an admission in respect of a part of a claim for a specified amount of money, or in respect of a claim for an unspecified amount of money:

1. the admission form or other written notice of admission should be completed and filed with the Court within the period set out in Rule 15.8; and
2. the defendant may also file a defence under Rule 16.3.

Period for making an admission

The period for returning an admission under Rule 15.14 or for filing it under Rules 15.18, 15.19 or 15.24 is:

1. where the defendant is served with a claim form which states that particulars of claim will follow, 14 days after service of the particulars; and
2. in any other case, 14 days after service of the claim form.

Rule 15.8 is subject to the following rules:

1. Rule 9.56 (which specifies how the period for filing or returning an admission is calculated where the claim form is served out of the jurisdiction); and
2. Rule 9.48 (which requires the Court to specify the period for responding to the particulars of claim when it makes an order under that rule).

A defendant may return an admission under Rule 15.14 or file it under Rules 15.18, 15.19 or 15.24 after the end of the period for returning or filing it specified in Rule 15.8 if the claimant has not obtained default judgment under Part 13.

If he does so, this Part shall apply as if he had made the admission within that period.

Admission by notice in writing — Application for judgment

Where a party makes an admission under Rule 15.1 (admission by notice in writing), any other party may apply for judgment on the admission.

Judgment shall be such as it appears to the Court that the applicant is entitled to on the admission.

Admission of whole of claim for specified amount of money

Where:

1. the only remedy which the claimant is seeking is the payment of a specified amount of money; and
2. the defendant admits the whole of the claim

the defendant may admit the claim by returning to the claimant an admission in Form 15/01 or Form 15/02.

The claimant may obtain judgment by filing a request in Form 13/01, and, if he does so:

1. if the defendant has not requested time to pay, the procedure in Rules 15.16 to 15.17 will apply;
2. if the defendant has requested time to pay, the procedure in Rules 15.33 to 15.38 will apply.

The claimant may specify in his request for judgment:

1. the date by which the whole of the judgment debt is to be paid; or
2. the times and rate at which it is to be paid by instalments.

On receipt of the request for judgment the Court will enter judgment for the amount of the claim (less any payments made) and costs:

1. to be paid by the date or at the rate specified in the request for judgment; or
2. if none is specified, immediately.

Admission of part of a claim for a specified amount of money

If the defendant admits part of a claim for a specified amount of money, the claimant may apply under Rule 15.12 for judgment on the admission.

Admission of liability to pay whole of claim for unspecified amount of money

Where:

1. the only remedy which the claimant is seeking is the payment of money;
2. the amount of the claim is not specified; and
3. the defendant admits liability but does not offer to pay a specified amount of money in satisfaction of the claim,

the defendant may admit the claim by filing an admission in the relevant Form P15/03.

On receipt of the admission, the Court will serve a copy on the claimant.

The claimant may obtain judgment by filing a request in Form P15/03.

If the claimant does not file a request for judgment within 14 days after service of the admission on him, the claim is stayed until he files the request.

On receipt of the request for judgment the Court will enter judgment for an amount to be decided by the Court and costs.

Admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim

Admission of liability to pay claim for unspecified amount of money where defendant offers a sum in satisfaction of the claim

Where:

1. the only remedy which the claimant is seeking is the payment of money;
2. the amount of the claim is not specified; and
3. the defendant
   1. admits liability; and
   2. offers to pay a specified amount of money in satisfaction of the claim

the defendant may admit the claim by filing an admission in Form P15/01.

On receipt of the admission, the Court will serve a notice on the claimant requiring him to return the notice stating whether or not he accepts the amount in satisfaction of the claim.

If the claimant does not file the notice within 14 days after it is served on him, the claim is stayed until he files the notice.

If the claimant accepts the offer he may obtain judgment by filing a request in Form P13/01 and if he does so:

1. if the defendant has not requested time to pay, the procedure in Rules 15.28 to 15.31 will apply;
2. if the defendant has requested time to pay, the procedure in Rules 15.33 to 15.38 will apply.

The claimant may specify in his request for judgment:

1. the date by which the whole of the judgment debt is to be paid; or
2. the times and rate at which it is to be paid by instalments.

On receipt of the request for judgment, the Court will enter judgment for the amount offered by the defendant (less any payments made) and costs:

1. to be paid on the date or at the rate specified in the request for judgment; or
2. if no such date or rate is specified, to be paid immediately.

If the claimant does not accept the amount offered by the defendant, he may obtain judgment by filing a request in Form P15/03.

Judgment under Rule 15.30 will be for an amount to be decided by the Court and costs.

Directions in relation to outstanding matters

Where the Court enters judgment under Rules 15.23 or 15.30 for an amount to be decided by the Court, it will give any directions it considers appropriate.

Request for time to pay

A defendant who makes an admission under Rules 15.14, 15.18 or 15.24 (admission relating to a claim for a specified amount of money or offering to pay a specified amount of money) may make a request for time to pay.

A request for time to pay is a proposal about the date of payment or a proposal to pay by instalments at the times and rate specified in the request.

The defendant's request for time to pay must be served or filed (as the case may be) with his admission.

If the defendant is requesting time to pay he should complete as fully as possible the statement of means contained in the admission form, or otherwise give in writing the same details of his means as could have been given in the admission form.

If the claimant accepts the defendant's request, he may obtain judgment by filing a request in Form P13/01.

On receipt of the request for judgment, the Court will enter judgment:

1. where Rule 15.14 applies, for the amount of the claim (less any payments made) and costs;
2. where Rule 15.18 applies, for the amount admitted (less any payments made) and costs; or
3. where Rule 15.24 applies, for the amount offered by the defendant (less any payments made) and costs; and
4. (in all cases) for payment at the time and rate specified in the defendant's request for time to pay.

Determination of rate of payment

Where the defendant has made a request for time to pay under Rule 15.33 if the claimant does not accept the defendant's proposals for payment, he must file a notice in Form P13/01.

Where the defendant's admission was served direct on the claimant, a copy of the admission and the request for time to pay must be filed with the claimant's notice.

When the Court receives the claimant's notice, it will enter judgment for the amount admitted (less any payments made) to be paid at the time and rate of payment determined by the Registrar.

Where the Registrar is to determine the time and rate of payment, he may do so without a hearing.

If there is to be a hearing to determine the time and rate of payment, the Court must give each party at least 7 days' notice of the hearing.

Where the Registrar has determined the time and rate of payment under Rule 15.42, either party may apply for the decision to be re-determined by a Judge.

An application for re-determination must be made within 14 days after service of the determination on the applicant.

In deciding the time and rate of payment the Court will take into account:

1. the defendant's statement of means set out in the admission form or in any other written notice of the admission filed,
2. the claimant's objections to the defendant's request set out in the claimant's notice, and
3. any other relevant factors.

Either party may, on account of a change in circumstances since the date of the decision (or re-determination as the case may be) apply to vary the time and rate of payment of instalments still remaining unpaid.

An application to vary under Rule 15.47 above should be made in accordance with Part 23.

Interest

Judgment under Rule 15.14 (admission of whole of claim for specified amount of money) shall include the amount of interest claimed to the date of judgment if:

1. the claim form includes the details required by Rule 17.18;

2. where interest is claimed under

   1. Articles 118 or 119 of the Contract Law 2004 (Articles 118 or 119 of DIFC Law No. 6/2004 (opens in a new tab));
   2. Articles 17, 18 or 32 of the Law of Damages and Remedies 2005 (Articles 17, 18 or 32 of DIFC Law No. 7/2005 (opens in a new tab));
   3. Article 121(b) of the Law of Obligations 2005 ( Article 121(b) of DIFC Law No. 5/2005 (opens in a new tab)); or
   4. Article 80 of the DIFC Employment Law 2005 ( Article 80 of DIFC Law No. 4/2005 (opens in a new tab));

   the rate is no higher than the rate of interest fixed by these Rules under Article 39(2)(a) of the Court Law ( Article 39(2)(a) of DIFC Law No. 10/2004 (opens in a new tab)) payable on judgment debts at the date when the claim form was issued; and

3. the claimant's request for judgment includes a calculation of the interest claimed for the period from the date up to which interest was stated to be calculated in the claim form to the date of the request for judgment.

In any case where judgment is entered under Rule 15.14 and the conditions in Rule 15.49 are not satisfied judgment shall be for an amount of interest to be decided by the Court.

Where judgment is entered for an amount of interest to be decided by the Court, the Court will give directions for the management of the case.

Withdrawing an admission

An admission made under this Part may be withdrawn with the Court's permission.

In deciding whether to give permission for an admission to be withdrawn, the Court will have regard to all the circumstances of the case, including:

1. the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
2. the conduct of the parties, including any conduct which led the party making the admission to do so;
3. the prejudice that may be caused to any person if the admission is withdrawn;
4. the prejudice that may be caused to any person if the application is refused;
5. the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
6. the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and
7. the interests of the administration of justice.

Part 16 — Defence and reply

Exceptions to this part

This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).

In relation to specialist proceedings in respect of which special provisions for defence and reply are made by these Rules and Practice Directions applicable to those claims, the provisions of this Part apply only to the extent that they are not inconsistent with those Rules and Practice Directions.

Filing a defence

A defendant who wishes to defend all or part of a claim must file a defence.

Consequence of not filing a defence

If a defendant fails to file a defence, the claimant may obtain default judgment if Part 13 allows it.

Form of defence

Form P16/01 (specified amount) or Form 16/02 (unspecified amount or non-money claims) may be used for the purpose of defence and is included in the response pack served on the defendant with the particulars of claim.

Statement of truth

Part 22 requires a defence to be verified by a statement of truth.

The form of the statement of truth is as follows:

‘[I believe][the defendant believes] that the facts stated in this defence are true.’

Attention is drawn to Section VI of Part 29 which sets out the consequences of verifying a statement of case containing a false statement without an honest belief in its truth.

The period for filing a defence

The general rule is that the period for filing a defence is:

1. 14 days after service of the particulars of claim; or
2. if the defendant files an acknowledgment of service under Part 11, 28 days after service of the particulars of claim.

The general rule is subject to the following rules:

1. Rule 9.57 (which specifies how the period for filing a defence is calculated where the claim form is served out of the jurisdiction );
2. Rule 12.10 (which provides that, where the defendant makes an application disputing the Court's jurisdiction , he need not file a defence before the hearing);
3. Rule 24.5 (which provides that, if the claimant applies for immediate judgment before the defendant has filed a defence, the defendant need not file a defence before the immediate judgment hearing); and
4. Rule 9.48 (which requires the Court to specify the period for responding to the particulars of claim when it makes an order under Rule 9.45).

Agreement extending the period for filing a defence

The defendant and the claimant may agree that the period for filing a defence specified in Rules 16.9 and 16.10 shall be extended by up to 28 days.

Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the Court in writing.

Service of copy of defence

A copy of the defence must be served on every other party.

Making a counterclaim

Part 21 applies to a defendant who wishes to make a counterclaim.

Where a defendant to a claim serves a counterclaim under Part 21, the defence and counterclaim should normally form one document, with the counterclaim following on from the defence.

Reply to defence

If a claimant files a reply to the defence, he must:

1. file his reply within 21 days after service of the defence; and
2. serve it on all other parties at the same time.

The reply should be served before case management information sheets are provided to the Court. In the normal case, this will allow the parties to consider any reply before completing the case management information sheet, and allow time for the preparation of the case memorandum and the list of issues each of which is required for the case management conference.

In some cases, more than 21 days may be needed for the preparation, service and filing of a reply. In such cases an application should be made on paper for an extension of time and for a postponement of the case management conference.

Where a claimant serves a reply and a defence to counterclaim , the reply and defence to counterclaim should normally form one document, with the defence to counterclaim following on from the reply.

No statement of case after a reply to be filed without Court's permission

A party may not file or serve any statement of case after a reply without the permission of the Court.

Claimant's notice where defence is that money claimed has been paid

Where:

1. the only claim (apart from a claim for costs and interest) is for a specified amount of money; and
2. the defendant states in his defence that he has paid to the claimant the amount claimed,

the Court will send notice to the claimant requiring him to state in writing whether he wishes the proceedings to continue.

The claimant must respond to a notice issued by the Court under Rule 16.21 within 28 days after service of the notice on him. When the claimant responds, he must serve a copy of his response on the defendant.

If the claimant fails to respond under Rule 16.22 within 28 days after service of the Court's notice on him, the claim shall be stayed.

Where a claim is stayed under this Rule, any party may apply for the stay to be lifted.

Claim stayed if it is not defended or admitted

Where:

1. at least 6 months have expired since the end of the period for filing a defence specified in Rules 16.9 and 16.10;
2. no defendant has served or filed an admission or filed a defence or counterclaim; and
3. the claimant has not entered or applied for judgment under Part 13 (default judgment), or Part 24 (immediate judgment);

the claim shall be stayed.

Where a claim is stayed under Rule 16.25, any party may apply for the stay to be lifted.

Application to lift stay

Any application made under Rule 16.24 or Rule 16.26 should be made in accordance with Part 23 and should give the reason for the applicant's delay in proceeding with or responding to the claim.

Part 17 - Statements of case

Exceptions to this part

This Part does not apply where the claimant uses the procedure set out in Part 8 (alternative procedure for claims).

Where special provisions about statements of case are made by the Rules and Practice Directions applying to particular types of proceedings, the provisions of this Part apply only to the extent that they are not inconsistent with those Rules and Practice Directions.

The Court may at any time before or after the issue of the claim form order a claim to proceed without the filing or service of statements of case.

Heading of claim form

The claim form must be headed with the title of the proceedings, including the full name of each party. The full name means, in each case where it is known:

1. in the case of an individual, his full unabbreviated name and title by which he is known;
2. in the case of an individual carrying on business in a name other than his own name, the full unabbreviated name of the individual, together with the title by which he is known, and the full trading name;
3. in the case of a partnership (other than a limited liability partnership (LLP))—
   1. where partners are being sued in the name of the partnership, the full name by which the partnership is known, together with the words ‘(A Firm)’; or
   2. where partners are being sued as individuals, the full unabbreviated name of each partner and the title by which he is known;
4. in the case of a company or limited liability partnership registered in the DIFC, the full registered name, including suffix (LLC, limited, LLP, etc), if any;
5. in the case of any other company or corporation, the full name by which it is known, including suffix where appropriate.

Claimant's address to be included in the claim form

The claim form must include the claimant's mailing address or an address at which the claimant resides or carries on business. This Rule applies even though the claimant's address for service is the business address of his legal representative.

Where the defendant is an individual, the claimant should (if he is able to do so) include in the claim form the defendant's mailing address or an address at which the defendant resides or carries on business. This Rule applies even though the defendant's legal representative has agreed to accept service on the defendant's behalf.

If the claim form does not show an address as required by Rule 17.5, the claim form will not be issued. The Court will notify the claimant.

Contents of the claim form

The claim form must:

1. contain a concise statement of the nature of the claim;
2. specify the remedy which the claimant seeks;
3. where the claimant's only claim is for a specified sum, contain a statement of the interest accrued on that sum; and
4. contain such other matters as may be set out in a Practice Direction.

In proceedings against the Government, the Centre Authority or any of the Centre's Bodies, the claim form must comply with the requirements of Part 41.

If the particulars of claim are not contained in, or are not served with the claim form, the claimant must state on the claim form that the particulars of claim will follow if an acknowledgement of service is filed which indicates an intention to defend the claim.

If the claimant is claiming in a representative capacity, the claim form must state what that capacity is.

If the defendant is sued in a representative capacity, the claim form must state what that capacity is.

The Court may grant any remedy to which the claimant is entitled even if that remedy is not specified in the claim form.

Contents of the particulars of claim — General

A claimant is not required to serve particulars of claim unless and until the defendant serves an acknowledgment of service in response to the claim form.

Where the claimant does not include the particulars of claim in the claim form, particulars of claim may be served separately:

1. either at the same time as the claim form, or
2. within 28 days of the filing of an acknowledgment of service which indicates an intention to defend.

Particulars of claim served separately from the claim form must also contain:

1. [deleted],
2. the claim number,
3. the title of the proceedings, and
4. the claimant's address for service.

Particulars of claim must include:

1. a concise statement of the facts on which the claimant relies;
2. if the claimant is seeking interest, a statement to that effect and the details set out in paragraph 17.18;
3. if the claimant is seeking multiple damages under Article 40(2) of the Law of Damages and Remedies 2005 ( Article 40(2) of DIFC Law No. 7/2005 (opens in a new tab)), a statement to that effect and his grounds for claiming them;
4. such other matters as may be set out in a Practice Direction.

If the claimant is seeking interest he must:

1. state whether he is doing so:
   1. under the terms of a contract;
   2. under an enactment and if so which; or
   3. on some other basis and if so what that basis is; and
2. if the claim is for a specified amount of money, state:
   1. the percentage rate at which interest is claimed;
   2. the date from which it is claimed;
   3. the date to which it is calculated, which must not be later than the date on which the claim form is issued;
   4. the total amount of interest claimed to the date of calculation; and
   5. the daily rate at which interest accrues after that date.

Contents of the particulars of claim — Specific

Where a claim is made for an injunction or declaration in respect of or relating to any land the particulars of claim must:

1. state whether or not the injunction or declaration relates to residential premises, and
2. identify the land (by reference to a plan where necessary).

Where a claim is brought to enforce a right to recover possession of goods the particulars of claim must contain a statement showing the value of the goods.

Where a claim is brought for personal injury:

1. the particulars of claim must contain:
   1. the claimant's date of birth, and
   2. brief details of the claimant's personal injuries;
2. the claimant must attach to his particulars of claim a schedule of details of any past and future expenses and losses which he claims; and
3. where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.

Matters which must be specifically set out in the particulars of claim if relied on

A claimant who wishes to rely on:

1. a Certificate of Contravention under Article 55 of the Markets Law 2004 ( Article 55 of DIFC Law No. 12/2004 (opens in a new tab)); or
2. a Certificate setting out a decision of the Financial Markets Tribunal under Article 34(6) of the Regulatory Law 2004 ( Article 34(6) of DIFC Law No. 1/2004 (opens in a new tab));

must include in his particulars of claim a statement to that effect and give the following details:

1. the type of finding and its date;
2. the issue in the claim to which it relates.

Contents of defence

If the defendant has not filed an acknowledgment of service under Part 11, he must give an address for service.

Where the defendant is an individual, and the claim form does not contain an address for the defendant in accordance with Rule 17.6, or contains an incorrect address, the defendant must provide such an address in the defence.

Where the defendant's address for service is not the defendant's mailing address or the address where he resides or carries on business, the defendant must still provide the address required by Rule 17.24.

In his defence, the defendant must state:

1. which of the allegations in the particulars of claim he denies;
2. which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
3. which allegations he admits.

Where the defendant denies an allegation:

1. he must state his reasons for doing so; and
2. if he intends to put forward a different version of events from that given by the claimant, he must state his own version.

A defendant who:

1. fails to deal with an allegation; but
2. has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,

shall be taken to require that allegation to be proved.

Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.

Subject to Rules 17.28 and 17.29, a defendant who fails to deal with an allegation shall be taken to admit that allegation.

If the defendant is defending in a representative capacity, he must state what that capacity is.

The defendant must give details of the expiry of any relevant limitation period relied on.

Defence of set-off

Where a defendant:

1. contends he is entitled to money from the claimant; and
2. relies on this as a defence to the whole or part of the claim,

the contention may be included in the defence and set off against the claim, whether or not it is also a counterclaim.

Reply to defence

A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence.

A claimant who:

1. files a reply to a defence; but
2. fails to deal with a matter raised in the defence,

shall be taken to require that matter to be proved.

General Rules about statements of case

Particulars of claim, the defence and any reply must be set out in separate consecutively numbered paragraphs and be as brief and concise as possible.

A party may:

1. refer in his statement of case to any point of law on which his claim or defence, as the case may be, is based;
2. give in his statement of case the name of any witness he proposes to call; and
3. serve with his statement of case a copy of any document which he considers is necessary to his claim or defence, as the case may be.

If it is necessary for the proper understanding of the statement of case to include substantial parts of a lengthy document the passages in question may be set out in a schedule rather than in the body of the statement of case.

Only the relevant parts of those documents which are obviously of critical importance and necessary for a proper understanding of the statement of case should be attached to or served with it. The statement of case must itself refer to the fact that documents are attached to or served with it.

If documents are to be served at the same time as a statement of case they should normally be served separately from rather than attached to the statement of case.

Where a party relies on an oral agreement, the statement of case should set out the contractual words used and state by whom, to whom, when and where they were spoken.

Where a party relies on an agreement by conduct, the statement of case must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.

A party must specifically set out the following matters in his statement of case where he wishes to rely on them in support of his case:

1. full and specific details of any allegation of fraud, dishonesty, malice or illegality;
2. details of any misrepresentation;
3. details of all breaches of trust;
4. notice or knowledge of a fact;
5. details of unsoundness of mind or undue influence;
6. details of wilful default; and
7. any facts relating to mitigation of loss or damage.

Any legislative provision on which an allegation is based must be clearly identified and the basis of its application explained.

Any principle of foreign law or foreign legislative provision on which a party's case is based must be clearly identified and the basis of its application explained.

An expert's report should not be attached to the statement of case and should not be filed with the statement of case at the Registry. A party must obtain permission from the Court in order to adduce expert evidence at trial and therefore any party which serves an expert's report without obtaining such permission does so at his own risk as to costs.

If a statement of case exceeds 25 pages (excluding schedules), a summary, not exceeding 4 pages, must also be filed and served at the same time as the statement of case. The summary should cross-refer to the paragraph numbering of the full statement of case. The summary is to be included in the case management bundle.

A statement of case must be signed by the individual person(s) who drafted it or bear the name of the lawyer by whom it was settled.

A statement of case must be verified by a statement of truth, the form of which is as follows:

‘[I believe][the claimant/defendant believes] that the facts stated in this claim form/these particulars of claim/this defence [and counterclaim/this reply and defence to counterclaim] are true.’

A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course is to seek the Court's permission to amend the statement of case.

Part 18 - Amendments to statements of case

Amendments to statements of case

A party may amend his statement of case at any time before it has been served on any other party.

If his statement of case has been served, a party may amend it only:

1. with the written consent of all the other parties; or
2. with the permission of the Court.

If a statement of case has been served, an application to amend it by removing, adding or substituting a party must be made in accordance with Part 20.

Power of Court to disallow amendments made without permission

If a party has amended his statement of case where permission of the Court was not required, the Court may disallow the amendment.

A party may apply to the Court for an order under Rule 18.4 within 14 days of service of a copy of the amended statement of case on him.

Amendments to statements of case with the permission of the court

Where the Court gives permission for a party to amend his statement of case, it may give directions as to:

1. amendments to be made to any other statement of case ; and
2. service of any amended statement of case.

The power of the Court to give permission under Rule 18.6 is subject to:

1. Rules 20.6 to 20.9 (change of parties – general);
2. Rules 20.27 to 20.29 (special provisions about adding or substituting parties after the end of a relevant limitation period); and
3. Rule 18.8 (amendments of statement of case after the end of a relevant limitation period).

Amendments to statements of case after the end of a relevant limitation period

Rules 18.9 to 18.11 apply where:

1. a party applies to amend his statement of case in one of the ways mentioned in Rule 18; and
2. a period of limitation has expired under:
   1. the Court Law ( DIFC Law No. 10/2004 (opens in a new tab));
   2. the Contract Law 2004 ( DIFC Law No. 6/2004 (opens in a new tab));
   3. the Law of Damages and Remedies 2005 ( DIFC Law No. 7/2005 (opens in a new tab));
   4. the Law of Obligations 2005 ( DIFC Law No. 5/2005 (opens in a new tab));
   5. the Trust Law 2005 ( DIFC Law No. 11/2005 (opens in a new tab)); or
   6. any other enactment which allows such an amendment, or under which such an amendment is allowed.

The Court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.

The Court may allow an amendment to correct a mistake as to the name of a party, but only where the mistake was genuine and not one which would cause reasonable doubt as to the identity of the party in question.

The Court may allow an amendment to alter the capacity in which a party claims if the new capacity is one which that party had when the proceedings started or has since acquired.

Applications to amend where the permission of the Court is required

Questions of amendment, and consequential amendment, should wherever possible be dealt with by consent. A party should consent to a proposed amendment unless he has substantial grounds for objecting to it.

The application may be dealt with at a hearing or, if Rule 23.68 applies, without a hearing.

When making an application to amend a statement of case, the applicant should file with the Court:

1. the application notice;
2. a copy of the statement of case with the proposed amendments; and
3. any evidence submitted in support of the application.

Late amendments should be avoided and may be disallowed.

General

Where permission to amend has been given, the applicant should within 14 days of the date of the order, or within such other period as the Court may direct, file with the Court the amended statement of case.

A copy of the order and the amended statement of case should be served on every party to the proceedings, unless the Court orders otherwise.

Where the Court's permission is not required the amended statement of case must be filed with the Court and served on every party to the proceedings.

The amended statement of case and the Court copy of it should be endorsed as follows:

1. where the Court's permission was required:

   “Amended [Particulars of Claim or as may be] by Order of [The Honourable Chief Justice, the Honourable Mr. Justice X, Mr. Registrar X, Deputy Registrar X or as may be] dated……………”

2. Where the Court's permission was not required:

   “Amended [Particulars of Claim or as may be] under RDC Rule 18.1 or 18.2(1)] dated………………”

The statement of case in its amended form must show the original text, unless the Court orders otherwise.

Amendments may be shown by using footnotes or marginal notes, provided they identify precisely where and when an amendment has been made.

However, the Court may direct that the amendments should be shown either:

1. by coloured amendments, either manuscript or computer generated, or
2. by use of a numerical code in a monochrome computer generated document.

Where colour is used, the text to be deleted should be struck through in colour and any text replacing it should be inserted or underlined in the same colour.

The order of colours to be used for successive amendments is:

1. red,
2. green,
3. blue and
4. brown.

If there have been extensive amendments, it may be desirable to prepare a fresh version of the statement of case as amended. However, a copy of the statement of case showing where and when amendments have been made must also be made available.

All amendments to any statement of case must be verified by a statement of truth unless the Court orders otherwise.

A party applying for an amendment will usually be responsible for the costs of and arising from the amendment, but the Court will have regard to any failure of a party to consent to an amendment in accordance with Rule 18.12.

Part 19 - Further information

Obtaining further information

The Court may at any time order a party to:

1. clarify any matter which is in dispute in the proceedings; or
2. give additional information in relation to any such matter;

whether or not the matter is contained or referred to in a statement of case.

Rule 19.1 is subject to any rule of law to the contrary.

Where the Court makes an order under Rule 19.1, the party against whom it is made must:

1. file his response; and
2. serve it on the other parties;

within the time specified by the Court.

Restriction on the use of further information

The Court may direct that information provided by a party to another party (whether given voluntarily or following an order made under Rule 19.1) must not be used for any purpose except for that of the proceedings in which it is given.

Preliminary request for further information or clarification

Before making an application to the Court for an order under Rule 19.1, the party seeking clarification or information should first serve on the party from whom it is sought a written request for that clarification or information (“a Request”), stating a date by which the response to the Request should be served. The date must allow the party providing clarification or further information a reasonable time to respond.

A Request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the first party to prepare his own case or to understand the case he has to meet.

Requests must be made as far as possible in a single comprehensive document and not piecemeal.

A Request may be made by letter if the text of the Request is brief and the reply is likely to be brief; otherwise the Request should be made in a separate document.

If a Request is made in a letter, the letter should, in order to distinguish it from any other that might routinely be written in the course of a case:

1. state that it contains a Request made under Part 19, and
2. deal with no matters other than the Request.

A Request (whether made by letter or in a separate document) must:

1. be headed with the title and number of the claim;
2. in its heading state that it is a Request made under Part 19, identify the party seeking clarification or information and the party from whom it is sought and state the date on which it is made;
3. set out in a separate numbered paragraph each request for information or clarification;
4. where a Request relates to a document, identify that document and (if relevant) the paragraph or words to which it relates; and
5. state the date by which the party seeking clarification or information expects a response to the Request.

A Request which is not in the form of a letter may, if convenient, be prepared in such a way that the response may be given on the same document:

1. to do this, the numbered paragraphs of the Request should appear on the left hand half of each sheet so that the paragraphs of the response may then appear on the right;
2. where a Request is prepared in this form an extra copy should be served for the use of the second party.

Subject to Rules 9.3(1) to (4) a Request should be served by e-mail if reasonably practicable.

Responding to a request

A response to a Request must be in writing, dated and signed by the party providing clarification or further information or his legal representative.

Where the Request is made in a letter:

1. the party providing clarification or further information may give his response in a letter or in a formal reply;
2. such a letter should identify itself as a response to the Request and deal with no other matters than the response.

Unless the Request is in the format described in Rule 19.11 and the party providing clarification or further information uses the document supplied for the purpose, a response must:

1. be headed with the title and number of the claim;
2. in its heading identify itself as a response to that Request;
3. repeat the text of each separate paragraph of the Request and set out under each paragraph the response to it; and
4. refer to and have attached to it a copy of any document not already in the possession of the first party which forms part of the response.

A second or supplementary response to a Request must identify itself as such in its heading.

The party providing clarification or further information must when he serves his response on the party seeking it serve on every other party and file with the Court a copy of the Request and of his response.

Statements of truth

A response to a Part 19 Request must be verified by a statement of truth in the following form:

“[I believe] [the claimant/defendant believes] that the facts stated in this response to the claimant's/defendant's Part 19 Request for further information are true”.

General matters

If the party providing clarification or further information objects to complying with the Request or part of it or is unable to do so at all or within the time stated in the Request:

1. he must inform the party seeking clarification or information promptly and in any event within that time; and
2. he may do so in a letter or in a separate document (a formal response), but in either case he must give reasons and, where relevant, give a date by which he expects to be able to comply.

There is no need for a party providing clarification or further information to apply to the Court if he objects to a Request or is unable to comply with it at all or within the stated time. He need only comply with Rule 19.19.

Where a party providing clarification or further information considers that a Request can only be complied with at disproportionate expense and objects to comply for that reason he should say so in his reply and explain briefly why he has taken that view.

Applications for orders under Part 19

An application notice for an order under Part 19 should set out or have attached to it the text of the order sought and in particular should specify the matter or matters in respect of which the clarification or information is sought.

If a Request under Rule 19.5 for the information or clarification has not been made, the application notice should, in addition, explain why not.

If a Request for clarification or information has been made, the application notice or the evidence in support should describe the response, if any.

Both the party seeking clarification or information and the party from whom it is sought should consider whether evidence in support of or in opposition to the application is required.

Where the party from whom clarification or information is sought has made no response to a Request served on him:

1. the party seeking the clarification or information need not serve the application notice on that party, and the Court may deal with the application without a hearing; and
2. sub-paragraph (1) above only applies if at least 14 days have passed since the Request was served and the time stated in it for a response has expired.

Unless Rule 19.26 applies the application notice must be served on the second party and on all other parties to the claim.

An order made under Part 19 must be served on all parties to the claim.

Part 20 - Addition and substitution of parties

Change of parties — General

Any number of claimants or defendants may be joined as parties to a claim.

Parties may be removed, added or substituted in existing proceedings either on the Court's own initiative or on the application of either an existing party or a person who wishes to become a party.

The application may be dealt with without a hearing where all the existing parties and the proposed new party are in agreement.

The application to add or substitute a new party should be supported by evidence setting out the proposed new party's interest in or connection with the claim.

The application notice should be filed in accordance with Rule 23.2 and, unless the application is made under Rule 20.9, be served in accordance with Rule 23.25.

I Addition and substitution of parties

Change of parties — General

Rules 20.6 to 20.9 apply where a party is to be added or substituted except where the case falls within Rules 20.27 to 20.29 (special provisions about changing parties after the end of a relevant limitation period).

The Court may order a person to be added as a new party if:

1. it is desirable to add the new party so that the Court can resolve all the matters in dispute in the proceedings; or
2. there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the Court can resolve that issue.

The Court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings.

The Court may order a new party to be substituted for an existing one if:

1. the existing party's interest or liability has passed to the new party; and
2. it is desirable to substitute the new party so that the Court can resolve the matters in dispute in the proceedings.

Where a claimant claims a remedy to which some other person is jointly entitled with him, all persons jointly entitled to the remedy must be parties unless the Court orders otherwise.

Procedure for adding and substituting parties

The Court's permission is required to remove, add or substitute a party, unless the claim form has not been served.

An application for permission under Rule 20.11 may be made by:

1. an existing party; or
2. a person who wishes to become a party.

An application for an order under Rule 20.9 (substitution of a new party where existing party's interest or liability has passed):

1. may be made without notice; and
2. must be supported by evidence setting out the proposed new party's interest in, or connection with, the claim.

An order for the removal, addition or substitution of a party must be served on:

1. all parties to the proceedings; and
2. any other person affected by the order.

When the Court makes an order for the removal, addition or substitution of a party, it may give consequential directions about:

1. filing and serving the claim form on any new defendant;
2. serving relevant documents on the new party; and
3. the management of the proceedings.

Addition or substitution of claimant

Nobody may be added or substituted as a claimant unless:

1. he has given his consent in writing; and
2. that consent has been filed with the Court.

If any person does not agree to be a claimant, he must be made a defendant, unless the Court orders otherwise.

Where an application is made to the Court to add or to substitute a new party to the proceedings as claimant, the party applying must file:

1. the application notice;
2. the proposed amended claim form and particulars of claim; and
3. the signed, written consent of the new claimant to be so added or substituted.

Where the Court makes an order adding or substituting a party as claimant but the signed, written consent of the new claimant has not been filed:

1. the order; and
2. the addition or substitution of the new party as claimant;

will not take effect until the signed, written consent of the new claimant is filed.

Where the Court has made an order adding or substituting a new claimant, the Court may direct:

1. a copy of the order to be served on every party to the proceedings and any other person affected by the order;
2. copies of the statements of case and of documents referred to in any statement of case to be served on the new party; and
3. the party who made the application to file within 14 days an amended claim form and particulars of claim.

Addition or substitution of defendant

These Rules apply to a new defendant who has been added or substituted as they apply to any other defendant.

Where the Court has made an order adding or substituting a defendant whether on its own initiative or on an application, the Court may direct:

1. the claimant to file with the Court within 14 days (or as ordered) an amended claim form and particulars of claim for the Court file;
2. a copy of the order to be served on all parties to the proceedings and any other person affected by it;
3. the amended claim form and particulars of claim, forms for admitting, defending and acknowledging the claim and copies of the statements of case and any other documents referred to in any statement of case to be served on the new defendant; and
4. unless the Court orders otherwise, the amended claim form and particulars of claim to be served on any other defendants.

A new defendant does not become a party to the proceedings until the amended claim form has been served on him.

Removal of party

Where the Court makes an order for the removal of a party from the proceedings:

1. the claimant must file with the Court an amended claim form and particulars of claim; and
2. a copy of the order must be served on every party to the proceedings and on any other person affected by the order.

Transfer of interest or liability

Where the interest or liability of an existing party has passed to some other person, application should be made to the Court to add or substitute that person.

The application must be supported by evidence showing the stage the proceedings have reached and what change has occurred to cause the transfer of interest or liability.

Special provisions about adding or substituting parties after the end of a relevant limitation period

Rules 20.28 to 20.29 apply to a change of parties after the end of a period of limitation under:

1. the Court Law ( DIFC Law No. 10/2004 (opens in a new tab));
2. the Contract Law 2004 ( DIFC Law No. 6/2004 (opens in a new tab));
3. the Law of Damages and Remedies 2005 ( DIFC Law No. 7/2005 (opens in a new tab));
4. the Law of Obligations 2005 ( DIFC Law No. 5/2005 (opens in a new tab));
5. the Trust Law 2005 ( DIFC Law No. 11/2005 (opens in a new tab)); or
6. any other enactment which allows such an amendment, or under which such an amendment is allowed.

The Court may add or substitute a party only if:

1. the relevant limitation period was current when the proceedings were started; and
2. the addition or substitution is necessary.

The addition or substitution of a party is necessary only if the Court is satisfied that:

1. the new party is to be substituted for a party who was named in the claim form in mistake for the new party;
2. the claim cannot properly be carried on by or against the original party unless the new party is added or substituted as claimant or defendant; or
3. the original party has died or had a bankruptcy order made against him and his interest or liability has passed to the new party.

Special Rules about parties in claims for wrongful interference with property

A claimant in a claim for wrongful interference with property must, in the particulars of claim, state the name and address of every person who, to his knowledge, has or claims an interest in the property and who is not a party to the claim.

A defendant to a claim for wrongful interference with property may apply for a direction that another person be made a party to the claim to establish whether the other person:

1. has a better right to the goods than the claimant; or
2. has a claim which might render the defendant with double liability.

In Rule 20.31 “double liability” means the double liability of the wrongdoer which can arise:

1. where one of two or more rights of action for wrongful interference is founded on a possessory title; or
2. where the measure of damages in an action for wrongful interference founded on a proprietary title is or includes the entire value of the goods, although the interest is one of two or more interests in the goods.

Where the person referred to in Rule 20.31 fails to attend the hearing of the application, or comply with any directions, the Court may order that he is deprived of any claim against the defendant in respect of the goods.

The application notice must be served on all parties and on the person referred to in Rule 20.31.

II - Representative parties

Representative parties with same interest

Where more than one person has the same interest in a claim:

1. the claim may be begun; or
2. the Court may order that the claim be continued;

by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.

The Court may direct that a person may not act as a representative.

Any party may apply to the Court for an order under Rule 20.36.

Unless the Court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule:

1. is binding on all persons represented in the claim; but
2. may only be enforced by or against a person who is not a party to the claim with the permission of the Court.

This rule does not apply to a claim to which Rules 20.41 to 20.46 apply.

Representation of interested persons who cannot be ascertained Etc.

Rules 20.41 to 20.46 apply to claims about:

1. the estate of a deceased person
2. property subject to a trust; or
3. the meaning of a document, including a Law.

The Court may make an order appointing a person to represent any other person or persons in the claim where the person or persons to be represented:

1. are unborn;
2. cannot be found;
3. cannot easily be ascertained; or
4. are a class of persons who have the same interest in a claim and;
   1. one or more members of that class are within sub-paragraphs (1), (2) or (3); or
   2. to appoint a representative would further the overriding objective.

An application for an order under Rule 20.41:

1. may be made by:
   1. any person who seeks to be appointed under the order; or
   2. any party to the claim; and
2. may be made at any time before or after the claim has started.

An application notice for an order under Rule 20.41 must be served on:

1. all parties to the claim, if the claim has started;
2. the person sought to be appointed, if that person is not the applicant or a party to the claim; and
3. any other person as directed by the Court.

The Court's approval is required to settle a claim in which a party is acting as a representative under Rules 20.41 to 20.46.

The Court may approve a settlement where it is satisfied that the settlement is for the benefit of all the represented persons.

Unless the Court otherwise directs, any judgment or order given in a claim in which a party is acting as a representative under Rules 20.41 to 20.46:

1. is binding on all persons represented in the claim; but
2. may only be enforced by or against a person who is not a party to the claim with the permission of the Court.

Representation of beneficiaries by trustees Etc.

A claim may be brought by or against trustees, executors or administrators in that capacity without adding as parties any persons who have a beneficial interest in the trust or estate (the ‘beneficiaries’).

Any judgment or order given or made in the claim is binding on the beneficiaries unless the Court orders otherwise in the same or other proceedings.

Death

Where a person who had an interest in a claim has died and that person has no personal representative (“person representing his estate”) the Court may order:

1. the claim to proceed in the absence of a person representing the estate of the deceased; or
2. a person to be appointed to represent the estate of the deceased.

Where a defendant against whom a claim could have been brought has died and:

1. a grant of representation has been made, the claim must be brought against the persons who are the personal representatives of the deceased;
2. a grant of representation has not been made:
   1. the claim must be brought against ‘the estate of’ the deceased; and
   2. the claimant must apply to the Court for an order appointing a person to represent the estate of the deceased in the claim.

A claim shall be treated as having been brought against ‘the estate of’ the deceased in accordance with Rule 20.50(2)(a) where:

1. the claim is brought against the ‘personal representatives’ of the deceased but a grant of probate or administration has not been made; or
2. the person against whom the claim was brought was dead when the claim was started.

Before making an order under Rule 20.49 or 20.50(2)(b), the Court may direct notice of the application to be given to any other person with an interest in the claim.

Where an order has been made under Rule 20.49 or 20.50(2)(b) any judgment or order made or given in the claim is binding on the estate of the deceased.

Power to make judgments binding on non-parties

Rules 20.55 to 20.62 apply to any claim relating to:

1. the estate of a deceased person;
2. property subject to a trust; or
3. the sale of any property.

The Court may at any time direct that notice of:

1. the claim; or
2. any judgment or order given in the claim;

be served on any person who is not a party but who is or may be affected by it.

An application under Rule 20.55:

1. may be made without notice; and
2. must be supported by written evidence which includes the reasons why the person to be served should be bound by the judgment in the claim.

Unless the Court orders otherwise:

1. a notice of a claim or of a judgment or order under Rule 20.55 must be:
   1. in Form P20/01 (claim) or Form P20/02 (judgment);
   2. issued by the Court; and
   3. accompanied by a form of acknowledgment of service with any necessary modifications;
   4. a notice of a judgment or order must also be accompanied by a copy of the judgment or order.
2. a notice of a claim must also be accompanied by:
   1. a copy of the claim form:
   2. such other statements of case, witness statements or affidavits as the Court may direct.
   3. [deleted]

If a person served with notice of a claim files an acknowledgment of service of the notice within 14 days he will become a party to the claim.

If a person served with notice of a claim does not acknowledge service of the notice, he will be bound by any judgment given in the claim as if he were a party.

If, after service of a notice of a claim on a person, the claim form is amended so as substantially to alter the relief claimed, the Court may direct that a judgment shall not bind that person unless a further notice, together with a copy of the amended claim form, is served on him.

Any person served with a notice of a judgment or order under Rule 20.55:

1. shall be bound by the judgment or order as if he had been a party to the claim; but
2. may, provided he acknowledges service:
   1. within 28 days after the notice is served on him, apply to the Court to set aside or vary the judgment or order; and
   2. take part in any proceedings relating to the judgment or order.
3. The following rules of Part 11 (acknowledgment of service) apply:
   1. Rule 11.7; and
   2. Rule 11.8, subject to the modification that references to the defendant are to be read as references to the person served with the notice.

A notice under Rule 20.55 is issued on the date entered on the notice by the Court.

Derivative claims

Rules 20.64 to 20.69 apply where a company or other incorporated body is alleged to be entitled to claim a remedy and a claim is made by one or more members of the company or body for it to be given that remedy (a ‘derivative claim’).

The company or body for whose benefit a remedy is sought must be a defendant to the claim.

After the claim form has been issued the claimant must apply to the Court for permission to continue the claim and may not take any other step in the proceedings except:

1. as provided by Rule 20.67; or
2. where the Court gives permission.

An application in accordance with Rule 20.65 must be supported by written evidence.

The:

1. claim form;
2. application notice; and
3. written evidence in support of the application;

must be served on the defendant within the period within which the claim form must be served and, in any event, at least 14 days before the Court is to deal with the application.

If the Court gives the claimant permission to continue the claim, the Court will give directions for the management of the claim.

The Court may order the company or body to indemnify the claimant against any liability in respect of costs incurred in the claim.

III - Group litigation

Definition

A Group Litigation Order (‘GLO’) means an order made under Rule 20.72 to provide for the case management of claims which give rise to common or related issues of fact or law (the ‘GLO issues’).

This Section III of Part 20 (group litigation orders) also applies where the multiple parties are defendants. The Court will give such directions in such a case as are appropriate.

Group Litigation Order (GLO)

The Court may make a GLO where there are or are likely to be a number of claims giving rise to the GLO issues.

An application for a GLO must be made in accordance with Part 23, may be made at any time before or after any relevant claims have been issued and may be made either by a claimant or by a defendant.

The following information should be included in the application notice or in written evidence filed in support of the application:

1. a summary of the nature of the litigation;
2. the number and nature of claims already issued;
3. the number of parties likely to be involved;
4. the common issues of fact or law (the GLO issues) that are likely to arise in the litigation; and
5. whether there are any matters that distinguish smaller groups of claims within the wider group.

A GLO may not be made without the consent of the Chief Justice.

Subject to obtaining the appropriate consent referred to in Rule 20.75 the Court may make a GLO of its own initiative.

A GLO must:

1. contain directions about the establishment of a register (the ‘group register’) on which the claims managed under the GLO will be entered; and
2. specify the GLO issues which will identify the claims to be managed as a group under the GLO.

A GLO may:

1. in relation to claims which raise one or more of the GLO issues:
   1. order their stay until further order; and
   2. direct their entry on the group register;
2. direct that from a specified date claims which raise one or more of the GLO issues should be entered on the group register; and
3. give directions for publicising the GLO.

The Group Register

A claim must be issued before it can be entered on a group register.

An application for details of a case to be entered on a group register may be made by any party to the case.

An order for details of the case to be entered on the group register will not be made unless the case gives rise to at least one of the GLO issues.

The Court, if it is not satisfied that a case can be conveniently case managed with the other cases on the group register, or if it is satisfied that the entry of the case on the group register would adversely affect the case management of the other cases, may refuse to allow details of the case to be entered on the group register, or order their removal from the register if already entered, although the case gives rise to one or more of the GLO issues.

The group register will normally be maintained by and kept at the Court but the Court may direct this to be done by the legal representative of one of the parties to a case entered on the register.

Rules 6.9 to 6.19 (supply of documents from Court records) apply where the register is maintained by the Court. A party to a claim on the group register may request documents relating to any other claim on the group register in accordance with Rule 6.9 as if he were a party to those proceedings.

Where the register is maintained by a legal representative, any person may inspect the group register during normal business hours and upon giving reasonable notice to the legal representative; the legal representatives may charge a fee not exceeding the fee prescribed for a search at the Court office.

Effect of the GLO

Where a judgment or order is given or made in a claim on the group register in relation to one or more GLO issues:

1. that judgment or order is binding on the parties to all other claims that are on the group register at the time the judgment is given or the order is made unless the Court orders otherwise; and
2. the Court may give directions as to the extent to which that judgment or order is binding on the parties to any claim which is subsequently entered on the group register.

Unless Rule 20.88 applies, any party who is adversely affected by a judgment or order which is binding on him may seek permission to appeal the order.

A party to a claim which was entered on the group register after a judgment or order which is binding on him was given or made may not:

1. apply for the judgment or order to be set aside, varied or stayed ; or
2. appeal the judgment or order;

but may apply to the Court for an order that the judgment or order is not binding on him.

Unless the Court orders otherwise, production of any document relating to the GLO issues by a party to a claim on the group register is production of that document to all parties to claims:

1. on the group register; and
2. which are subsequently entered on the group register.

Case management

Directions may include directions:

1. varying the GLO issues;
2. providing for one or more claims on the group register to proceed as test claims;
3. appointing the legal representative of one or more parties to be the lead legal representative for the claimants or defendants;
4. specifying the details to be included in a statement of case in order to show that the criteria for entry of the claim on the group register have been met;
5. specifying a date after which no claim may be added to the group register unless the Court gives permission;
6. for the entry of any particular claim which meets one or more of the GLO issues on the group register;
7. for the trial of common issues; and
8. for the trial of individual issues.

Statements of case

The Court may direct that the GLO claimants serve ‘Group Particulars of Claim’ which set out the various claims of all the claimants on the group register at the time the particulars are filed. Such particulars of claim will usually contain:

1. general allegations relating to all claims; and
2. a schedule containing entries relating to each individual claim specifying which of the general allegations are relied on and any specific facts relevant to the claimant.

The directions given under Rule 20.91 should include directions as to whether the Group Particulars of Claim should be verified by a statement or statements of truth and, if so, by whom.

The specific facts relating to each claimant on the group register may be obtained by the use of a questionnaire. Where this is proposed, the Court should be asked to approve the questionnaire. The Court may direct that the questionnaires completed by individual claimants take the place of the schedule referred to in Rule 20.91(2).

The Court may also give directions about the form that particulars of claim relating to claims which are to be entered on the group register should take.

Removal from the register

A party to a claim entered on the group register may apply to the Court for the claim to be removed from the register.

If the Court orders the claim to be removed from the group register it may give directions about the future management of the claim.

Test claims

Where a direction has been given for a claim on the group register to proceed as a test claim and that claim is settled, the Court may order that another claim on the group register be substituted as the test claim.

Where an order is made under Rule 20.97, any order made in the test claim before the date of substitution is binding on the substituted claim unless the Court orders otherwise.

Part 21 - Counterclaims and other additional claims

Scope and interpretation

This Part applies to:

1. a counterclaim by a defendant against the claimant or against the claimant and some other person;
2. an additional claim by a defendant against any person (whether or not already a party) for contribution or indemnity or some other remedy; and
3. where an additional claim has been made against a person who is not already a party, any additional claim made by that person against any other person (whether or not already a party).

In these Rules:

1. ‘additional claim’ means any claim other than the claim by the claimant against the defendant ; and
2. unless the context requires otherwise, references to a claimant or defendant include a party bringing or defending an additional claim.

Application of these Rules to additional claims

An additional claim shall be treated as if it were a claim for the purposes of these Rules, except as provided by this Part.

Rules 7.20 to 7.25 (time within which a claim form may be served) do not apply to additional claims.

Part 13 (default judgment) applies to a counterclaim but not to other additional claims.

Part 15 (admissions) applies to a counterclaim, but only:

1. Rule 15.1 (which provides that a party may admit the truth of another party's case in writing); and
2. Rules 15.12 and 15.13 (admission by notice in writing — application for judgment):

apply to other additional claims.

Defendant's counterclaim against the claimant

A defendant may make a counterclaim against a claimant by filing particulars of the counterclaim.

A defendant may make a counterclaim against a claimant:

1. without the Court's permission if he files it with his defence. The defence and counterclaim should normally form one document, with the counterclaim following on from the defence; or
2. at any other time with the Court's permission.

Part 11 (acknowledgment of service) does not apply to a claimant who wishes to defend a counterclaim.

Where a claimant serves a reply and a defence to counterclaim , the reply and the defence to counterclaim should normally form one document, with the defence to counterclaim following on from the reply.

Counterclaim against a person other than the claimant

A defendant who wishes to counterclaim against a person who is not already a party must apply to the Court for an order that that person be added as an additional party.

An application for an order under Rule 21.11 may be made without notice unless the Court directs otherwise.

Where the Court makes an order under Rule 21.11, it will give directions as to the management of the case.

Defendant's additional claim for contribution or indemnity from another party

A defendant who has filed an acknowledgment of service or a defence may make an additional claim for contribution or indemnity against a person who is already a party to the proceedings by:

1. filing a notice containing a statement of the nature and grounds of his additional claim; and
2. serving the notice on that party.

A defendant may file and serve a notice under Rule 21.14:

1. without the Court's permission, if he files and serves it:
   1. with his defence; or
   2. if his additional claim for contribution or indemnity is against a party added to the claim later, within 28 days after that party files his defence; or
2. at any other time with the Court's permission.

Procedure for making any other additional claim

Rules 21.17 to 21.24 apply to any additional claim except:

1. a counterclaim only against an existing party; and
2. a claim for contribution or indemnity made in accordance with Rule 21.14.

An additional claim is made when the Court issues the appropriate claim form.

A defendant may make an additional claim:

1. without the Court's permission if the additional claim is issued before or at the same time as he files his defence; and
2. at any other time with the Court's permission.

Particulars of an additional claim must be contained in or served with the additional claim.

An application for permission to make an additional claim may be made without notice, unless the Court directs otherwise.

Where an application is made for permission to make an additional claim, the application notice should be filed together with a copy of the proposed additional claim.

An application for permission to make an additional claim must be supported by evidence stating:

1. the stage which the proceedings have reached;
2. the nature of the additional claim to be made or details of the question or issue which needs to be decided;
3. a summary of the facts on which the additional claim is based; and
4. the name and address of any proposed additional party.

Where delay has been a factor contributing to the need to apply for permission to make an additional claim an explanation of the delay should be given in evidence.

Where possible the applicant should provide a timetable of the proceedings to date.

Service of claim form

Where an additional claim may be made without the Court's permission, any claim form must:

1. in the case of a counterclaim against an additional party only, be served on every other party when a copy of the defence is served;
2. in the case of any other additional claim, be served on the person against whom it is made within 14 days after the date on which the additional claim is issued by the Court.

Rule 21.25 does not apply to a claim for contribution or indemnity made in accordance with Rule 21.14.

Where the Court gives permission to make an additional claim, it will at the same time give directions as to its service.

Statement of truth

The contents of an additional claim should be verified by a statement of truth.

Matters relevant to question of whether an additional claim should be separate from the claim

Rule 21.30 applies where the Court is considering whether to:

1. permit an additional claim to be made;
2. dismiss an additional claim; or
3. require an additional claim to be dealt with separately from the claim by the claimant against the defendant.

The matters to which the Court may have regard include:

1. the connection between the additional claim and the claim made by the claimant against the defendant;
2. whether the additional claimant is seeking substantially the same remedy which some other party is claiming from him; and
3. whether the additional claimant wants the Court to decide any question connected with the subject matter of the proceedings:
   1. not only between existing parties but also between existing parties and a person not already a party; or
   2. against an existing party not only in a capacity in which he is already a party but also in some further capacity.

Effect of service of an additional claim

A person on whom an additional claim is served becomes a party to the proceedings if he is not a party already.

When an additional claim is served on an existing party for the purpose of requiring the Court to decide a question against that party in a further capacity, that party also becomes a party in the further capacity specified in the additional claim.

Special provisions relating to default judgment on an additional claim other than a counterclaim or a contribution or indemnity notice

Rules 21.34 to 21.38 apply if:

1. the additional claim is not:
   1. a counterclaim; or
   2. a claim by a defendant for contribution or indemnity against another defendant under Rule 21.14; and
2. the party against whom an additional claim is made fails to file an acknowledgment of service or defence in respect of the additional claim.

The party against whom the additional claim is made is deemed to admit the additional claim, and is bound by any judgment or decision in the proceedings in so far as it is relevant to any matter arising in the additional claim.

Subject to Rule 21.36, if default judgment under Part 13 is given against the additional defendant, the additional claimant may obtain judgment in respect of the additional claim by filing a request in Form P13/01 or Form P13/02.

An additional claimant may not enter judgment under Rule 21.35 without the Court's permission if:

1. he has not satisfied the default judgment which has been given against him; or
2. he wishes to obtain judgment for any remedy other than a contribution or indemnity.

An application for the Court's permission under Rule 21.36 may be made without notice unless the Court directs otherwise.

The Court may at any time set aside or vary a judgment entered under Rule 21.35.

Procedural steps on service of an additional claim form on a non-party

Where an additional claim form is served on a person who is not already a party it must be accompanied by the following, which can be set out in one or more documents:

1. a form for defending the claim;
2. a form for admitting the claim;
3. a form for acknowledging service; and
4. a copy of:
   1. every statement of case which has already been served in the proceedings; and
   2. such other documents as the Court may direct.

A copy of the additional claim form must be served on every existing party.

Case management where a defence to an additional claim is filed

Where a defence is filed to an additional claim the Court must consider the future conduct of the proceedings and give appropriate directions.

In giving directions under Rule 21.41 the Court must ensure that, so far as practicable, the original claim and all additional claims are managed together.

Where the defendant to an additional claim files a defence, other than to a counterclaim, the Court will arrange a hearing to consider case management of the additional claim. This will normally be at the same time as a case management hearing for the original claim and any other additional claims.

The Court will give notice of the hearing to each party likely to be affected by any order made at the hearing.

At the hearing the Court may:

1. treat the hearing as a immediate judgment hearing;
2. order that the additional claim be dismissed;
3. give directions about the way any claim, question or issue set out in or arising from the additional claim should be dealt with;
4. give directions as to the part, if any, the additional defendant will take at the trial of the claim; and
5. give directions about the extent to which the additional defendant is to be bound by any judgment or decision to be made in the claim.

The Court may make any of the orders in Rule 21.45(1) to 21.45(5) either before or after any judgment in the claim has been entered by the claimant against the defendant.

Titles of proceedings where there are additional claims

Where there are additional claims which add parties, the title to the proceedings should comprise a list of all parties describing each by giving them a single identification. Subject to Rule 21.56, this identification should be used throughout.

Claimants and defendants in the original claim should always be referred to as such in the title to the proceedings, even if they subsequently acquire an additional procedural status.

Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example ‘Third Party’ or ‘Fourth Party’, whatever their actual procedural status.

Examples:

1. If the defendant makes an additional claim against a single additional party, the additional party should be referred to in the title as ‘Third Party’.
2. If the defendant makes separate additional claims against two additional parties, the additional parties should be referred to in the title as ‘Third Party’ and ‘Fourth Party’.
3. If the defendant makes a counterclaim against the claimant and an additional party, the claimant should remain as ‘Claimant’ and the additional party should be referred to in the title as ‘Third Party’.
4. If the Third Party in example (2) makes an additional claim against a further additional party, that additional party should be referred to in the title as ‘Fifth Party’.

If an additional claim is brought against more than one party jointly, they should be referred to in the title to the proceedings as, for example, ‘First Named Third Party’ and ‘Second Named Third Party’.

In group litigation, the Court should give directions about the designation of parties.

All parties should co-operate to ensure that two parties each making additional claims do not attribute the same nominal status to more than one party.

In proceedings with numerous parties, the Court will if necessary give directions as to the preparation and updating of a list of parties giving their roles in the claim and each additional claim.

If an additional party ceases to be a party to the proceedings, for example because the claim against that party is discontinued or dismissed, all other additional parties should retain their existing nominal status.

In proceedings where there are additional parties, the description of all statements of case or other similar documents should clearly identify the nature of the document with reference to each relevant party.

Examples:

1. In example 21.49(1), the defendant's additional claim should be headed ‘Defendant's Additional Claim against Third Party’ and the Third Party's defence to it should be headed ‘Third Party's Defence to Defendant's Additional Claim’.
2. In example 21.49(3), the Defendant's counterclaim should be headed ‘Defendant's Counterclaim against Claimant and Third Party’ and the Third Party's defence to it should be headed ‘Third Party's defence to Defendant's Counterclaim’.

In proceedings where there are Fourth or subsequent parties, additional parties should be referred to in the text of statements of case or other similar documents by name, suitably abbreviated if appropriate. If parties have similar names, suitable distinguishing abbreviations should be used.

Part 22 - Statements of truth

Documents to be verified by a statement of truth

The following documents must be verified by a statement of truth:

1. a statement of case;
2. a response complying with an order under Rule 19.1 to provide further information;
3. a witness statement;
4. an acknowledgement of service in a claim begun by way of the Part 8 procedure;
5. a certificate of service;
6. any other document where a Rule or Practice Direction requires;
7. an application notice for:
   1. a charging order under Article 43 of the Law of Damages and Remedies 2005 ( Article 43 of DIFC Law No. 7/2005 (opens in a new tab));
   2. an order for attachment of future assets under Article 44 of the Law of Damages and Remedies 2005 ( Article 44 of DIFC Law No. 7/2005 (opens in a new tab)); and
   3. an order for execution against assets under Article 45 of the Law of Damages and Remedies 2005 ( Article 45 of DIFC Law No. 7/2005 (opens in a new tab));
8. a notice of objections to an account being taken by the Court, unless verified by an affidavit or witness statement; and
9. a schedule or counter-schedule of expenses and losses in a personal injury claim, and any amendments to such a schedule or counter-schedule, whether or not they are contained in a statement of case.

An expert's report should also be verified by a statement of truth. For the form of the statement of truth verifying an expert's report (which differs from that set out below) see Rule 31.55.

The statement of truth may be contained in the document it verifies or it may be in a separate document served subsequently, in which case it must identify the document to which it relates.

Where the form to be used includes a jurat for the content to be verified by an affidavit then a statement of truth is not required in addition.

Where a statement of case is amended, the amendments must be verified by a statement of truth unless the Court orders otherwise.

If an applicant wishes to rely on matters set out in his application notice as evidence, the application notice must be verified by a statement of truth.

A statement of truth is a statement that:

1. the party putting forward the document;
2. in the case of a witness statement, the maker of the witness statement; or
3. in the case of a certificate of service, the person who signs the certificate;
4. believes the facts stated in the document are true.

The statement of truth must be signed by:

1. in the case of a statement of case, a response or an application:
   1. the party; or
   2. the legal representative on behalf of the party; and
2. in the case of a witness statement, the maker of the statement.

A statement of truth in a statement of case may be made by:

1. a person who is not a party; or
2. by two parties jointly.

Form of the statement of truth

The form of the statement of truth verifying a statement of case, a response, an application notice or a notice of objections should be as follows:

‘[I believe][The (claimant or as may be) believes] that the facts stated in this [name document being verified] are true.’

The form of the statement of truth verifying a witness statement should be as follows:

‘I believe that the facts stated in this witness statement are true.’

Where the statement of truth is contained in a separate document, the document containing the statement of truth must be headed with the title of the proceedings and the claim number. The document being verified should be identified in the statement of truth as follows:

1. claim form: ‘the claim form issued on [date]’;
2. particulars of claim: ‘the particulars of claim issued on [date]’;
3. statement of case: ‘the [defence or as may be] served on the [name of party] on [date]’;
4. application notice : ‘the application notice issued on [date] for [set out the remedy sought]’; or
5. witness statement: ‘the witness statement filed on [date] or served on [party] on [date]’.

Who may sign the statement of truth

In a statement of case, a response or an application notice, the statement of truth must be signed by:

1. the party; or
2. the party's legal representative.

A statement of truth verifying a witness statement must be signed by the witness.

A statement of truth verifying a notice of objections to an account must be signed by the objecting party or his legal representative.

Where a document is to be verified on behalf of a company or other corporation, subject to Rule 22.21 below, the statement of truth must be signed by a person holding a senior position in the company or corporation. That person must state the office or position he holds.

Each of the following persons is a person holding a senior position:

1. in respect of a registered company or corporation, a director, the treasurer, secretary, chief executive, manager or other officer of the company or corporation; and
2. in respect of a corporation which is not a registered company, in addition to those persons set out in (1), the mayor, chairman, president or other similar officer of the corporation.

Where the document is to be verified on behalf of a partnership, those who may sign the statement of truth are:

1. any of the partners; or
2. a person having the control or management of the partnership business.

An insurer may sign a statement of truth in a statement of case on behalf of a party where the insurer has a financial interest in the result of proceedings brought wholly or partially by or against that party.

If insurers are conducting proceedings on behalf of many claimants or defendants, a statement of truth in a statement of case may be signed by a senior person responsible for the case at a lead insurer, but;

1. the person signing must specify the capacity in which he signs;
2. the statement of truth must be a statement that the lead insurer believes that the facts stated in the document are true; and
3. the Court may order that a statement of truth also be signed by one or more of the parties.

Where a party is legally represented, the legal representative may sign the statement of truth on his behalf. The statement signed by the legal representative will refer to the client's belief, not his own. In signing he must state the capacity in which he signs and the name of his firm where appropriate.

Where a legal representative has signed a statement of truth, his signature will be taken by the Court as his statement:

1. that the client on whose behalf he has signed had authorised him to do so;
2. that before signing he had explained to the client that in signing the statement of truth he would be confirming the client's belief that the facts stated in the document were true; and
3. that before signing he had informed the client of the possible consequences to the client if it should subsequently appear that the client did not have an honest belief in the truth of those facts (see Section VI of Part 29).

The individual who signs a statement of truth must print his full name clearly beneath his signature.

A legal representative who signs a statement of truth must sign in his own name and not that of his firm or employer.

The following are examples of the possible application of this Part describing who may sign a statement of truth verifying statements in documents other than a witness statement. These are only examples and not an indication of how a Court might apply this Part to a specific situation.

The following are examples of the possible application of this Part describing who may sign a statement of truth verifying statements in documents other than a witness statement. These are only examples and not an indication of how a Court might apply this Part to a specific situation.

Managing Agent: An agent who manages property or investments for the party cannot sign a statement of truth. It must be signed by the party or by the legal representative of the party.

Trusts: Where some or all of the trustees comprise a single party one, some or all of the trustees comprising the party may sign a statement of truth. The legal representative of the trustees may sign it.

Insurers: If an insurer has a financial interest in a claim involving its insured then, if the insured is the party, the insurer may sign a statement of truth in a statement of case for the insured party. Rules 22.16 and 22.17 apply to the insurer if it is a company. The claims manager employed by the insurer responsible for handling the insurance claim or managing the staff handling the claim may sign the statement of truth for the insurer (see next example).

Companies Rules 22.16 and 22.17: The word ‘manager’ will be construed in the context of the phrase ‘a person holding a senior position’ which it is used to define. The Court will consider the size of the company and the size and nature of the claim. It would expect the manager signing the statement of truth to have personal knowledge of the content of the document or to be responsible for managing those who have that knowledge of the content. A small company may not have a manager, apart from the directors, who holds a senior position. A large company will have many such managers. In a larger company with specialist claims, insurance or legal departments the statement may be signed by the manager of such a department if he or she is responsible for handling the claim or managing the staff handling it.

In-house legal representatives: Legal representative is defined in the Schedule to Part 2. A legal representative employed by a party may sign a statement of truth. A person employed by the company who is not legally qualified cannot sign a statement of truth on behalf of the party.

A party may apply to the Court for permission that a statement of truth be signed by a person other than one of those required by the Part.

Power of the Court to require a document to be verified

The Court may order a person who has failed to verify a document in accordance with Rule 22.1 to verify the document.

Any party may apply to the Court for an order under Rule 22.27 that unless within such period as the Court may specify the statement of case is verified by the service of a statement of truth, the statement of case will be struck out.

The usual order for the costs of an application referred to in Rule 22.28 will be that the costs be paid by the party who had failed to verify in any event and forthwith.

Failure to verify a statement of case

If a party fails to verify his statement of case by a statement of truth:

1. the statement of case shall remain effective unless struck out; but
2. the party may not rely on the statement of case as evidence of any of the matters set out in it.

The Court may strike out a statement of case which is not verified by a statement of truth.

Penalty

Attention is drawn to Section VI of Part 29 which sets out the consequences of verifying a statement of case containing a false statement without an honest belief in its truth.

Part 23 - General Rules about applications for Court orders

Meaning of ‘Application Notice’ and ‘Respondent’

In this Part:

1. ‘application notice’ means a document in which the applicant states his intention to seek a Court order; and
2. ‘respondent’ means:
   1. the person against whom the order is sought; and
   2. such other person as the Court may direct.

I - Filing and service of notice of an application

Application notice to be filed

The general rule is that an applicant must file an application notice.

An applicant may make an application without filing an application notice if:

1. this is permitted by a Rule or Practice Direction; or
2. the Court dispenses with the requirement for an application notice.

Notice of an application

The general rule is that a copy of the application notice must be served by the applicant on each respondent even if such service is on short notice.

An application may be made without serving a copy of the application notice if this is permitted by:

1. a Rule; or
2. a Court order.

Applications without service of application notice

The Court's permission is required for an application to be made without serving an application notice . The Court's permission will be granted only:

1. where there is exceptional urgency;
2. where the overriding objective is best furthered by doing so;
3. by consent of all parties;
4. where Rule 23.19 below applies;
5. where a Rule or Practice Direction permits; or
6. where there are good reasons for making the application without notice, for example, because notice would or might defeat the object of the application.

Where an application notice should be served but there is not sufficient time to do so, informal notification of the application should be given unless the circumstances of the application require secrecy.

Where an application without notice does not involve the giving of undertakings to the Court, it will normally be made and dealt with without a hearing, as, for example, applications for an extension of time in which to serve a claim form.

Any application for an interim injunction or similar remedy will require an oral hearing.

A party wishing to make an application without notice which requires an oral hearing before a Judge should contact the Court at the earliest opportunity.

On all applications without notice it is the duty of the applicant and those representing him to make full disclosure of all matters relevant to the application including, in particular, disclosure of any possible defences that may be available to the respondent in response to the application.

The papers lodged for the application should include two copies of a draft of the order sought. Save in exceptional circumstances where time does not permit, all the evidence relied upon in support of the application and any other relevant documents must be lodged in advance with the Registry. If the application is urgent, the Court should be informed in writing of the fact and of the reasons for the urgency.

Expedited applications

The Court will expedite the hearing of an application on notice in cases of sufficient urgency and importance.

Where a party wishes to make an expedited application a request should be made to the Registrar on notice to all other parties.

Pre-action applications

All applications made before a claim is commenced should be made under Part 8 of the Rules, unless the Court orders otherwise.

Time when an application is made

Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

Applications should, wherever possible, be made so that they can be considered at any other hearing for which a date has already been fixed or for which a date is about to be fixed. This is particularly so in relation to Case Management Conferences, listing hearings and pre-trial reviews fixed by the Court.

Where a date for a hearing has been fixed and a party wishes to make an application at that hearing but he does not have sufficient time to serve an application notice he should inform the other party and the Court (if possible in writing) as soon as he can of the nature of the application and the reason for it. He should then make the application orally at the hearing.

The Court will only entertain applications at a hearing for which a date has been fixed if the proposed (additional) application will not increase the time estimate already given for the hearing.

Where an application must be made within a specified time, it is so made if the application notice is received by the Court within that time.

What an application notice must include

An application notice must state:

1. what order the applicant is seeking; and
2. briefly, why the applicant is seeking the order.

An application notice must be signed and include:

1. the title of the claim;
2. the reference number of the claim;
3. the full name of the applicant;
4. where the applicant is not already a party, his address for service ; and
5. either a request for a hearing or a request that the application be dealt with without a hearing.

On receipt of an application notice containing a request for a hearing the Court will notify the applicant of the time and date for the hearing of the application.

Service of a copy of an application notice

Unless the Court otherwise directs, or Rule 23.5 applies a copy of the application notice:

1. must be served as soon as practicable after it is filed; and
2. except where another time limit is specified in these Rules, must in any event be served at least 3 days before the Court is to deal with the application.

When a copy of an application notice is served it must be accompanied by:

1. a copy of any written evidence in support; and
2. a copy of any draft order which the applicant has attached to his application.

If:

1. an application notice is served; but
2. the period of notice is shorter than the period required by these Rules;

the Court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

II - Evidence in support of applications

Evidence already filed

Rule 23.25(1) does not require written evidence:

1. to be filed if it has already been filed; or
2. to be served on a party on whom it has already been served.

Filing and service of evidence

The requirement for evidence in certain types of applications is set out in some of the Rules. Where there is no specific requirement to provide evidence it should be borne in mind that, as a practical matter, the Court will often need to be satisfied by evidence of the facts that are relied on in support of or for opposing the application.

The Court may give directions for the filing of evidence in support of or opposing a particular application. The Court may also give directions for the filing of evidence in relation to any hearing that it fixes on its own initiative. The directions may specify the form that evidence is to take and when it is to be served.

Where it is intended to rely on evidence which is not contained in the application itself, the evidence, if it has not already been served, should be served with the application.

Where a respondent to an application wishes to rely on evidence which has not yet been served, he should serve it as soon as possible and in any event in accordance with any directions the Court may have given.

If it is necessary for the applicant to serve any evidence in reply, it should be served as soon as possible and in any event in accordance with any directions the Court may have given.

Evidence must be filed with the Court as well as served on the parties. Exhibits should not be filed unless the Court otherwise directs.

Evidence verified by statement of truth

Although evidence may be given by affidavit , the Court will generally exercise its discretion under Article 51(1) of the Court Law ( Article 51(1) of DIFC Law No. 10/2004 (opens in a new tab)) to permit evidence to be given by witness statement, except where Part 29 requires evidence to be given on affidavit (as, for example, in the case of an application for a freezing order or a search order). In other cases the Court may order that evidence be given by affidavit.

Witness statements and affidavits must comply with the requirements of Part 29, save that photocopy documents should be used unless the Court orders otherwise.

Witness statements must be verified by a statement of truth signed by the maker of the statement.

At hearings other than trial, an applicant may rely on the application notice itself, and a party may rely on his statement of case, if the application notice or statement of case (as the case may be) is verified by a statement of truth.

Proceedings for contempt of court may be brought against a person who makes, or causes to be made, a false statement in a witness statement (or any other document verified by a statement of truth) without an honest belief in its truth. Evidence in support of an application for contempt of court should generally be given by affidavit unless the Court orders otherwise.

III - Preparations for applications

Ordinary applications

Applications likely to require an oral hearing lasting 2 hours or less are regarded as “ordinary” applications.

Many ordinary applications are very short indeed (e.g. applications to extend time). Such applications can normally be heard without evidence and on short (i.e. a few days) notice.

Where evidence is necessary, the timetable for ordinary applications is as follows:

1. evidence in support must be filed and served with the application;
2. evidence in answer must be filed and served within 14 days thereafter;
3. evidence in reply (if any) must be filed and served within 7 days thereafter.

The timetable may be abridged or extended by agreement between the parties provided that any date fixed for the hearing of the application is not affected. In appropriate cases, this timetable may be abridged by the Court.

If the date fixed for the hearing of an application means that the times in Rules 23.41(2) and 23.41(3) cannot both be achieved, the evidence must be filed and served:

1. as soon as possible; and
2. in sufficient time to ensure that the application may fairly proceed on the date fixed.

Heavy applications

Applications likely to require an oral hearing lasting more than 2 hours are regarded as “heavy” applications.

Heavy applications normally involve a greater volume of evidence and other documents and more extensive issues. They accordingly require a longer leadtime for preparation and exchange of evidence.

The timetable for heavy applications is as follows:

1. evidence in support must be filed and served with the application;
2. evidence in answer must be filed and served within 28 days thereafter;
3. evidence in reply (if any) must be filed and served as soon as possible, and in any event within 14 days of service of the evidence in answer.

The timetable may be abridged or extended by agreement between the parties provided that any date fixed for the hearing of the application is not affected. In appropriate cases, the timetable may be abridged by the Court.

Liaison with the Registrar

In all cases the parties must liaise with the Registrar:

1. for directions as to the preparations for the hearing of the application;
2. to fix a date for the hearing; and
3. for directions as to the management of the hearing.

Hearing dates, time estimates and time limits

Not later than 5 days before the date fixed for the hearing the applicant must provide the Registry with his current estimate of the time required to dispose of the application.

It is essential for the efficient conduct of the Court's business that the parties inform the Court of the reading required in order to enable the Judge to dispose of the application within the time allowed for the hearing and of the time likely to be required for that purpose. Accordingly:

1. each party must lodge with the Registry a reading list with an estimate of the time required to complete the reading; and
2. each party's reading list should identify the material on both sides which the Court needs to read.

All time estimates should be given on the assumption that the Judge will have read in advance the skeleton arguments and the documents identified in the reading list lodged in accordance with Rule 23.50(1).

If at any time either party considers that there is a material risk that the hearing of the application will exceed the time currently allowed, it must inform the Registry immediately.

A time estimate for an ordinary application should allow time for judgment and consequential matters; a time estimate for a heavy application should not.

Save in the situation referred to in Rule 23.55, a separate estimate must be given for each application, including any application issued after, but to be heard at the same time as, another application.

A separate estimate need not be given for any application issued after, but to be heard at the same time as, another application where the legal representative in the case certifies in writing that:

1. the determination of the application first issued will necessarily determine the application issued subsequently; or
2. the matters raised in the application issued subsequently are not contested.

If it is found at the hearing that the time required for the hearing has been significantly underestimated, the Judge hearing the application may adjourn the matter and may make any special costs orders (including orders for the immediate payment of costs) as may be appropriate.

Applications — Preparation of documents

Application Bundles

Bundles for use on applications may be compiled in any convenient manner but must contain the following documents (preferably in separate sections in the following order):

1. a copy of the application notice;
2. a draft of the order which the applicant seeks;
3. a copy of the statements of case;
4. copies of any previous orders which are relevant to the application; and
5. copies of the witness statements and affidavits filed in support of, or in opposition to, the application, together with any exhibits.

Copies of the statements of case and of previous orders in the action should be provided in a separate section of the bundle. They should not be exhibited to witness statements.

Witness statements and affidavits previously filed in the same proceedings should be included in the bundle at a convenient location. They should not be exhibited to witness statements.

The applicant must, as a matter of course, provide all other parties to the application with a copy of the application bundle at the cost of the receiving party. Further copies should be supplied on request, again at the cost of the receiving party.

Bundles of Legal Authorities

On some applications there will be key legal authorities that it would be useful for the Judge to read before the oral hearing of the application. Copies of these authorities should be provided with the skeleton arguments.

It is also desirable for bundles of all of the legal authorities on which the parties wish to rely to be provided to the Judge hearing the application as soon as possible after skeleton arguments have been exchanged.

Skeleton Arguments

Skeleton arguments (with a chronology unless one is unnecessary, and with a list of persons if one is warranted) must be lodged with the Registry and served on the legal representatives for all other parties to the application. Guidelines on the preparation of chronologies are set out in Schedule A to this Part.

General

1. Where the hearing is fixed for a Sunday, or for a Monday where the Judge is hearing other matters on the Sunday, unless the Court orders otherwise:
   1. All bundles to be submitted for the hearing of the Heavy Application must be received by the DIFC Courts Registry by 10am on the Wednesday prior to the hearing date.
   2. Skeleton arguments shall be exchanged and filed with the DIFC Courts by no later than 2pm on the Thursday prior to the hearing.
2. For all other applications or those to be heard by video conference, all bundles must be received by the DIFC Courts Registry by
   1. 10am on the Wednesday prior to any hearing fixed for a Monday or Tuesday, with Skeleton arguments to be filed with the Courts by 2pm on the Thursday prior to the hearing and
   2. 10am on the Sunday prior to any hearing fixed for a Wednesday or Thursday with Skeleton arguments to be filed with the Courts by 2pm on the day falling two working days prior to the hearing.

For each day that a submission or filing for a hearing as set out in 23.4 above is delayed above is delayed, a charge of US$200 will be applied to the party responsible for making the filing.

Problems with the lodging of bundles or skeleton arguments should be notified to the Registrar as far in advance as possible. If the application bundle or skeleton argument is not lodged by the time specified, the application may be stood out of the list without further warning.

Failure to comply with the requirements for lodging bundles for the application will normally result in the application not being heard on the date fixed at the expense of the party in default. An order for immediate payment of costs may be made.

The parties must anticipate that at any hearing the Court may wish to review the conduct of the case as a whole and give any necessary case management directions. They should be ready to assist the Court in doing so and to answer questions the Court may ask for this purpose.

IV - Hearings

Applications which may be dealt with without a hearing

The Court may deal with an application without a hearing if:

1. the parties agree as to the terms of the order sought;
2. the parties agree that the Court should dispose of the application without a hearing; or
3. the Court does not consider that a hearing would be appropriate.

Agreed orders

Rule 36.28 sets out the circumstances where an agreed judgment or order may be entered and sealed.

Where an agreed order is to be made by a Judge the order must be drawn so that the Judge's name and judicial title can be inserted.

The parties to an application for an agreed order must ensure that they provide the Court with any material it needs to be satisfied that it is appropriate to make the order. Subject to any Rule or Practice Direction, a letter will generally be acceptable for this purpose.

Agreed orders may be submitted to the Court in draft for approval and initialling without the need for attendance.

1. Two copies of the draft, one of which (or a counterpart) must be signed on behalf of all parties to whom it relates, should be lodged at the Registry . The copies should be undated. The order will be dated with the date on which the Judge initials it, but that does not prevent the parties acting on their agreement immediately if they wish.
2. The parties should act promptly in lodging the copies at the Registry. If it is important that the orders are made by a particular date, that fact (and the reasons for it) should be notified in writing to the Registry.

Where a judgment or order has been agreed in respect of an application or claim where a hearing date has been fixed, the parties must inform the Court immediately.

Parties agree hearing unnecessary

If the applicant considers that the application is suitable for determination on paper, he should ensure before lodging the papers with the Court:

1. that the application notice together with any supporting evidence has been served on the respondent;
2. that the respondent has been allowed the appropriate period of time in which to serve evidence in opposition;
3. that any evidence in reply has been served on the respondent; and
4. that there is included in the papers
   1. the written consent of the respondent to the disposal of the application without a hearing; or
   2. a statement by the applicant of the grounds on which he seeks to have the application disposed of without a hearing, together with confirmation that a copy has been served on the respondent.

The Court at its discretion may dispose of an application without a hearing in the absence of the respondent's consent.

Certain applications relating to the management of proceedings may conveniently be made in correspondence without issuing an application notice. It must be clearly understood that such applications are not applications without notice and the applicant must therefore ensure that a copy of the letter making the application is sent to all other parties to the proceedings. Accordingly, the following procedure should be followed when making an application of this kind:

1. applicant should first ascertain whether the application is opposed by the other parties;
2. if it is, the applicant should apply to the Court by letter stating the nature of the order which it seeks and the grounds on which the application is made;
3. a copy of the letter should be sent (by fax or email where possible) to all other parties at the same time as it is sent to the Court;
4. any other party wishing to make representations should do so by letter within two days (i.e. two clear days) of the date of the applicant's letter of application. The representations should be sent (by fax or email where possible) to the applicant and all other parties at the same time as they are sent to the Court; and
5. the Court will advise its decision by letter to the applicant. The applicant must forthwith copy the Court's letter to all other parties, by email where possible.

Court does not consider hearing appropriate

Where Rule 23.69(3) applies the Court will treat the application as if it were proposing to make an order on its own initiative.

Hearings to be in public

Applications (other than arbitration applications) will be heard in public in accordance with Article 13 of the Court Law ( Article 13 of DIFC Law No. 10/2004 (opens in a new tab)), save where otherwise ordered.

With certain exceptions, arbitration applications will normally be heard in private.

An application without notice for a freezing order or a search order will normally be heard in private.

Hearings by video link, telephone, electronic device or other appropriate means

Parties must consider whether hearings can conveniently take place by video link, telephone, electronic device or other appropriate means in accordance with Article 51 of the Court Law ( Article 51 of DIFC Law No. 10/2004 (opens in a new tab)).

1. The general rule for all hearings before the DIFC Courts is that the advocate for each party should appear physically in the DIFC Courts
2. There may be exceptional situations in which an advocate is unable to appear, for example due to the urgency of the matter, or because the estimated cost of his appearance in person before the Court is wholly disproportionate to the matters to be addressed at the hearing. In such circumstances that advocate may, by application on notice under RDC Part 23.77, request permission from the Registrar to participate in a hearing by video or telephone conference.

Guidelines on the conduct of hearings by video link and telephone are set out Schedules B and C to this Part.

Power of the Court to proceed in the absence of a party

Where the applicant or any respondent fails to attend the hearing of an application, the Court may proceed in his absence.

Where:

1. the applicant or any respondent fails to attend the hearing of an application; and
2. the Court makes an order at the hearing;

the Court may, on application or of its own initiative, re-list the application.

The power to re-list the application in Rule 23.86 is in addition to any other powers of the Court with regard to the order (for example to set aside , vary, discharge or suspend the order).

Note of proceedings

The Court will keep, either by way of a note or a tape recording, brief details of all proceedings before it, including the dates of the proceedings and a short statement of the decision taken at each hearing.

V - Judgments, orders and directions

Orders generally drawn up by the parties

Except for orders made by the Court on its own initiative and unless the Court orders otherwise, every judgment, order or direction will be drawn up by the parties.

Agreed orders

An application for an agreed order must include a draft of the proposed order signed on behalf of all the parties to whom it relates in accordance with Rule 23.73(1).

Arabic translations

Parties are reminded of the obligation to produce Arabic translations of any judgment, order or direction in accordance with Rule 2.4.

Time for compliance with Orders

Where an order provides a time by which something is to be done, the order should wherever possible state the particular date by which the thing is to be done rather than specify a period of time from a particular date or event.

Service of application where application made without notice

This Rule applies where the Court has disposed of an application which it permitted to be made without service of a copy of the application notice.

1. Where the Court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the Court orders otherwise, be served with the order on any party or other person:
   1. against whom the order was made; and
   2. against whom the order was sought.
2. The order must contain a statement of the right to make an application to set aside or vary the order under Rule 23.94.

A person who was not served with a copy of the application notice before an order was made under Rule 23.91, may apply to have the order set aside or varied.

An application under this Rule 23.94 must be made within 7 days after the date on which the order was served on the person making the application.

VI - Costs

Immediate assessment of costs

Attention is drawn to Part 38 and, in particular, to the Court's power to make an immediate assessment of costs.

Attention is also drawn to Rule 38.56 which provides that if an order makes no mention of costs, none are payable in respect of the proceedings to which it relates.

In carrying out an immediate assessment of costs, the Court may have regard amongst other matters to:

1. advice from the Registrar on costs of legal representatives ;
2. any survey published showing the average hourly expense rate for legal representatives in the DIFC or Dubai;
3. any information provided to the Court by a Bar Association (or similar body) on average charges by legal representatives.

Schedule A to Part 23 - Skeleton arguments, chronologies and indices

Skeleton arguments

1. A skeleton argument is intended to identify both for the parties and the Court those points which are, and are not, in issue and the nature of the argument in relation to those points that are in issue.

   It is not a substitute for oral argument.

2. Skeleton arguments must therefore:

   1. identify concisely:
      1. the nature of the case generally and the background facts insofar as they are relevant to the matter before the Court;
      2. the propositions of law relied on with references to the relevant authorities;
      3. the submissions of fact to be made with references to the evidence;
   2. be in numbered paragraphs and state the name of the legal representative(s) who prepared them; and
   3. should avoid arguing the case at length.

   Chronologies and indices

3. As far as possible chronologies and indices should be uncontroversial. The ideal is that the Court and the parties should have a single point of reference that all find useful and are happy to work with.

4. Where there is disagreement about a particular event or description, it is useful if that fact is indicated in neutral terms and the competing versions shortly stated.

5. If time and circumstances allow its preparation, a chronology or index to which all parties have contributed and agreed can be invaluable.

6. Chronologies and indices once prepared can be easily updated and are of continuing usefulness throughout the life of the case.

Schedule B to Part 23 - Video-conferencing protocol

This protocol is for the use of video conferencing (VCF) in civil proceedings. It is in part based, with permission, upon the protocol of the Federal Court of Australia. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise.

Video Conferencing generally

1. The protocol covers the use of VCF equipment both (a) in a courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the Judge sits is referred to as the “local site”. The other site or sites to and from which transmission is made are referred to as “the remote site” and in any particular case any such site may be another courtroom. The protocol applies to cases where VCF is used for the taking of evidence and also to its use for other parts of any legal proceeding (for example, interim applications, case management conferences, pre-trial reviews).
2. VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, and such savings may also be achieved by its use for taking domestic evidence. It is, however, inevitably not as ideal as having the witness physically present in court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation. In particular, it needs to be recognised that the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.
3. When used for the taking of evidence, the objective should be to make the VCF setting as close as possible to the usual practice in a trial court where evidence is taken in open court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents.
4. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a court in the DIFC by means of VCF. If there is any doubt about this, enquiries should be directed to the Registry with a view to ensuring that the country from which the evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the Court what those inquiries were and of their outcome.
5. Time zone differences need to be considered when a witness abroad is to be examined in the DIFC by VCF. The convenience of the witness, the parties, their representatives and the Court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours.
6. Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to “speak over” the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking.
7. With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum.

Preliminary arrangements

1. The Court's permission is required for any part of any proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the Registrar or other appropriate Court Officer of the intention to seek it, and should enquire as to the availability of Court VCF equipment for the day or days of the proposed VCF. The application for a direction should be made to the Registrar or Judge, as may be appropriate. If all parties consent, permission can be sought by letter or e-mail, although the Court may still require an oral hearing. All parties are entitled to make submissions on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. If a VCF direction is given, arrangements for the transmission will then need to be made. The Court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter referred to as “the VCF arranging party”.
2. Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the Court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions.
3. The local site will, if practicable, be a courtroom but it may instead be an appropriate studio or conference room. The VCF arranging party must contact the Registry and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the Court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the Registry. The Court will need to be satisfied that any equipment provided by the parties for use at the local site and also that at the remote site is of sufficient quality for a satisfactory transmission. The VCF arranging party must ensure that a technical assistant will be present at the local site to supervise the operation of the VCF throughout the transmission in order to deal with any technical problems. That party must also arrange for a technical assistant to be similarly present at the remote site for like purposes.
4. It is recommended that the Judge, legal representatives and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission.
5. If the local site is not a courtroom, but a conference room or studio, the Judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners' table encompasses all legal representatives so that the viewer can see everyone seated there.
6. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless only the Court has determined that they should be heard in private). If the local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend.
7. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the insignia of the DIFC Court to be placed above the Judge's seat.
8. In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the Court which made the VCF direction so that the evidence can be recorded. A Court Officer will normally be present to operate the recording equipment when the local site is a courtroom. The VCF arranging party should take steps to ensure that a Court Officer is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission. A direction from the Court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are court proceedings and, save as directed by the Court, no other recording of them must be made.
9. Some countries may require that any oath or affirmation to be taken by a witness accord with local custom. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the Court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in the DIFC, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The Court Officer will normally administer the oath.
10. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.
11. Additional documents are sometimes quite properly introduced during the course of a witness's evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission. Consideration should be given to whether to use a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are reception facilities at the participating sites.

The hearing

1. The procedure for conducting the transmission will be determined by the Judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the Judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the Judge will need to decide whether court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from courtroom to courtroom. It might not be when a commercial facility is being used.
2. At the beginning of the transmission, the Judge will probably wish to introduce himself and the legal representatives to the witness. He will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. He may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. He will probably wish to explain to the witness the method of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. He will probably also wish to inform the witness of the matters referred to in paragraphs 6 and 7 above (coordination of picture with sound, and picture quality).
3. The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question and also any other person (whether another legal representative or the Judge) making any statements in regard to the witness's evidence. It will in practice be most convenient if everyone remains seated throughout the transmission.

Schedule C to Part 23 - Telephone hearings

1. The Court may order that an application or part of an application be dealt with by a telephone hearing.
2. The applicant should indicate on his application notice if he seeks a Court order under paragraph 1. Where he has not done so but nevertheless wishes to seek an order the request should be made as early as possible.
3. An order under paragraph 1 will not normally be made unless every party entitled to be given notice of the application and to be heard at the hearing has consented to the order.
4. No representative of a party to an application being heard by telephone may attend the Judge in person while the application is being heard unless the other party to the application has agreed that he may do so.
5. If an application is to be heard by telephone the following directions will apply, subject to any direction to the contrary:
   1. The applicant's legal representative must arrange the telephone conference for precisely the time fixed by the Court. The telecommunications provider must be capable of connecting the parties and the Court.
   2. He must tell the operator the telephone numbers of all those participating in the conference call and the sequence in which they are to be called.
   3. It is the responsibility of the applicant's legal representative to ascertain from all the other parties whether their legal representatives will be on the same or different telephone numbers.
   4. The sequence in which they are to be called will be:
      1. the applicant's legal representatives;
      2. the legal representatives for all other parties; and
      3. the Judge.
   5. The applicant's legal representatives must arrange for the conference to be recorded on tape by the telecommunications provider whose system is being used and must send the tape to the Court.
   6. Each speaker is to remain on the line after being called by the operator setting up the conference call. The call may be 2 or 3 minutes before the time fixed for the application.
   7. When the Judge has been connected the applicant's legal representative will introduce the parties in the usual way.
   8. If the use of a ‘speakerphone’ by any party causes the Judge or any other party any difficulty in hearing what is said the Judge may require that party to use a hand held telephone.
   9. The telephone charges debited to the account of the party initiating the conference call will be treated as part of the costs of the application.

Part 24 - Immediate judgment

Grounds for immediate judgment

The Court may give immediate judgment against a claimant or defendant on the whole of a claim, part of a claim or on a particular issue if:

1. it considers that:
   1. that claimant has no real prospect of succeeding on the claim or issue; or
   2. that defendant has no real prospect of successfully defending the claim or issue; and
2. there is no other compelling reason why the case or issue should be disposed of at a trial.

An application for immediate judgment under Rule 24.1 may be based on:

1. a point of law (including a question of construction of a document);
2. the evidence which can reasonably be expected to be available at trial or the lack of it; or
3. a combination of these.

Types of proceedings in which immediate judgment is available

The Court may give immediate judgment against a claimant or defendant in any type of proceedings.

Procedure

A claimant may not apply for immediate judgment until the defendant against whom the application is made has filed:

1. an acknowledgement of service; or

2. a defence;

   unless

   1. the Court gives permission; or
   2. a Practice Direction provides otherwise.

If a claimant applies for immediate judgment before a defendant against whom the application is made has filed a defence, that defendant need not file a defence before the hearing.

Where an immediate judgment hearing is fixed, the respondent (or the parties where the hearing is fixed of the Court's own initiative) must be given at least 14 days' notice of:

1. the date fixed for the hearing; and
2. the issues which it is proposed that the Court will decide at the hearing.

Procedure for making an application

The application notice must include a statement that it is an application for immediate judgment made under Part 24.

The application notice or the evidence referred to in it or served with it must:

1. identify concisely any point of law or provision in a document on which the applicant relies; and/or
2. state that it is made because the applicant believes that on the evidence the respondent has no real prospect of succeeding on the claim or issue or (as the case may be) of successfully defending the claim or issue to which the application relates;

and in either case state that the applicant knows of no other compelling reason why the case or issue should be disposed of at a trial.

Evidence for the purposes of an immediate judgment hearing

The parties are to comply with Part 23 but it is not necessary for written evidence:

1. to be filed if it has already been filed; or
2. to be served on a party on whom it has already been served.

Where an immediate judgment hearing is fixed by the Court of its own initiative:

1. any party who wishes to rely on written evidence at the hearing must:

   1. file the written evidence; and
   2. unless the Court orders otherwise, serve copies on every other party to the proceedings;

   at least 7 days before the date of the hearing;

2. any party who wishes to rely on written evidence at the hearing in reply to any other party's written evidence must:

   1. file the written evidence in reply; and
   2. unless the Court orders otherwise serve copies on every other party to the proceedings;

   at least 3 days before the date of the hearing.

Orders the Court may make

The orders the Court may make on an application under Part 24 include:

1. judgment on the claim or any part of the claim;
2. the striking out or dismissal of the claim;
3. the dismissal of the application; and
4. a conditional order.

Where it appears to the Court possible that a claim or defence may succeed but improbable that it will do so, the Court may make a conditional order.

A conditional order is an order which requires a party:

1. to pay a sum of money into Court; or
2. to take a specified step in relation to his claim or defence, as the case may be, and provides that that party's claim will be dismissed or his statement of case will be struck out if he does not comply.

Accounts and inquiries

If a remedy sought by a claimant in his claim form includes, or necessarily involves, taking an account or making an inquiry, an application can be made under Part 24 by any party to the proceedings for an order directing any necessary accounts or inquiries to be taken or made.

Specific performance

If a remedy sought by a claimant in his claim form includes a claim:

1. for specific performance of an agreement (whether in writing or not) for the sale, purchase, exchange, mortgage or charge of any property, or for the grant or assignment of a lease or tenancy of any property, with or without an alternative claim for damages; or
2. for rescission of such an agreement; or
3. for the forfeiture or return of any deposit made under such an agreement;

the claimant may apply under Part 24 for judgment.

The claimant may do so at any time after the claim form has been served, whether or not the defendant has acknowledged service of the claim form, whether or not the time for acknowledging service has expired and whether or not any particulars of claim have been served.

The application notice by which an application under Rule 24.15 is made must have attached to it the text of the order sought by the claimant.

The application notice and a copy of every affidavit in support and of any exhibit referred to therein must be served on the defendant not less than 4 days before the hearing of the application.

Case management

Where the Court dismisses the application or makes an order that does not completely dispose of the claim it may:

1. give directions as to the filing and service of a defence; and
2. give further directions about the management of the case.

Costs

Attention is drawn to Part 38 and, in particular, to the Court's power to make an immediate assessment of costs.

Attention is also drawn to Rule 38.56 which provides that if an order makes no mention of costs, none are payable in respect of the proceedings to which it relates.

Setting aside order for immediate judgment

If an order for immediate judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied (see also Rules 23.83 to 23.85).

On the hearing of an application under Rule 24.22, the Court may make such order as it thinks just.

Part 25 - Interim remedies and security for costs

Orders for interim remedies

The Court may grant the following interim remedies:

1. an interim injunction;
2. an interim declaration;
3. an order:
   1. for the detention, custody or preservation of relevant property;
   2. for the inspection of relevant property;
   3. for the taking of a sample of relevant property;
   4. for the carrying out of an experiment on or with relevant property;
   5. for the sale of relevant property which is of a perishable nature or which for any other good reason is desirable to sell quickly; and
   6. for the payment of income from relevant property until a claim is decided.
4. an order authorising a person to enter any land or building in the possession of a party to the proceedings for the purposes of carrying out an order under sub-paragraph (3);
5. an order providing for the delivery up of any goods which are or may become the subject matter of subsequent proceedings in the Court or as to which any question may arise in proceedings, to the claimant or to a person appointed by the Court for the purpose on such terms and conditions as may be specified in the order;
6. an order (referred to as a ‘freezing order’):
   1. restraining a party from removing from the jurisdiction assets located there; or
   2. restraining a party from dealing with any assets whether located within the jurisdiction or not;
7. an order directing a party to provide information about the location of relevant property or assets or to provide information about relevant property or assets which are or may be the subject of an application for a freezing order;
8. an order (referred to as a ‘search order’) requiring a party to admit another party to premises for the purpose of preserving evidence;
9. an order for production of documents or inspection of property before a claim has been made;
10. an order for production of documents or inspection of property against a non-party;
11. an order (referred to as an order for interim payment) under Section II of this Part for payment by a defendant on account of any damages , debt or other sum (except costs) which the Court may hold the defendant liable to pay;
12. an order for a specified fund to be paid into Court or otherwise secured, where there is a dispute over a party's right to the fund;
13. an order permitting a party seeking to recover personal property to pay money into Court pending the outcome of the proceedings and directing that, if he does so, the property shall be given up to him;
14. an order directing a party to prepare and file accounts relating to the dispute;
15. an order directing any account to be taken or inquiry to be made by the Court;
16. an order appointing a receiver or receiver and manager, having such powers as the Court may see fit, of the property or any of the property of anybody corporate;
17. where the person against whom the order is to be made is a natural person:
    1. an order appointing a receiver or trustee, having such powers as the Court may see fit, of the property or any of the property of that person;
    2. an order requiring that person to deliver up to the Court his passport and such other documents as the Court sees fit; or
    3. an order prohibiting that person from leaving the DIFC, Dubai or the UAE without the consent of the Court; and
18. any other remedy provided by any other law, whether enacted before or after these Rules.

In Rules 25.1(3) and 25.1(7), relevant property means property (including land) which is the subject of a claim or as to which any question may arise on a claim.

The Court may grant an interim remedy whether or not there has been a claim for a final remedy of that kind.

Jurisdiction

A Judge may make an order for any interim remedy.

The powers of the Registrar to make orders for interim remedies are set out in Rules 3.4 to 3.14.

I - Interim remedies — general

Time when an order for an interim remedy may be made

An order for an interim remedy may be made at any time, including:

1. before proceedings are started; and
2. after judgment has been given.

However:

1. Rule 25.6 is subject to any Rule, Practice Direction or other enactment which provides otherwise;
2. the Court may grant an interim remedy before a claim has been made only if:
   1. the matter is urgent; or
   2. it is otherwise desirable to do so in the interests of justice; and
   3. unless the Court otherwise orders, a defendant may not apply for any of the orders listed in Rule 25.1 before he has filed either an acknowledgment of service or a defence.
3. Where the Court grants an interim remedy before a claim has been commenced, it may give directions requiring a claim to be commenced.
4. In particular, the Court need not direct that a claim be commenced where the application is made for production of documents or inspection of property before a claim is made.

How to apply for an interim remedy

The Court may grant an interim remedy on an application made without notice if it appears to the Court that there are good reasons for not giving notice.

An application for an interim remedy must be supported by evidence, unless the Court orders otherwise.

If the applicant makes an application without giving notice, the evidence in support of the application must state the reasons why notice has not been given.

Urgent applications and applications without notice

Urgent applications and applications without notice fall into two categories:

1. applications where a claim form has already been issued; and
2. applications where a claim form has not yet been issued;

and, in both cases, where notice of the application has not been given to the respondent.

Where a party makes an urgent application:

1. The party should telephone the Court between 10:00am and 5:00pm Sunday to Thursday on + 917 4427 3333 and ask to be put in touch with the Registrar or Deputy Registrar. The party should state that the call relates to an urgent application and provide an estimate of when they will be ready to present the application;
2. Where the application is so urgent that it must be made outside these hours, the party should telephone the Court's emergency telephone number on + 971 4427 3331;
3. The applications will normally be dealt with at a court hearing but cases of extreme urgency may be dealt with by telephone;
4. At the hearing of the application, the Court may consist of a Judge and the Registrar sitting together;
5. When acting under the procedure set out in this Part, the Court shall set a Return Date for the hearing of the application before a Judge sitting alone, which shall not be later than three days from the date upon which the interim order is issued.

Applications dealt with at a Court hearing after issue of a claim form:

1. the application notice, evidence in support and a draft order should be filed with the Court two hours before the hearing wherever possible;
2. if an application is made before the application notice has been issued, a draft order should be provided at the hearing, and the application notice and evidence in support must be filed with the Court on the same or next business day or as ordered by the Court ; and
3. except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application.

Applications made before the issue of a claim form:

1. in addition to the provisions set out in Rule 25.13, unless the Court orders otherwise, either the applicant must undertake to the Court to issue a claim form immediately or the Court will give directions for the commencement of the claim;
2. where possible the claim form should be served with the order for the injunction; and
3. an order made before the issue of a claim form should state in the title after the names of the applicant and respondent ‘the Claimant and Defendant in an Intended Action’.

Applications made by telephone:

1. [deleted]
2. [deleted]
3. the Judge will require a draft order to be emailed to him;
4. the application notice and evidence in support must be filed with the Court on the same or next working day or as ordered, together with two copies of the order for sealing;
5. injunctions will be heard by telephone only where the applicant is acting by legal representative.

Making an application — General

The application notice must state:

1. the order sought; and
2. the date, time and place of the hearing.

The application notice and evidence in support must be served as soon as practicable after issue and in any event not less than 3 days before the Court is due to hear the application.

A draft of the order sought should be filed with the application notice.

Unless the urgency means that this is not possible, the applicant should provide the Court at the earliest opportunity with a skeleton argument.

Evidence

Applications for search orders and freezing orders must be supported by affidavit evidence.

Applications for other interim injunctions must be supported by evidence set out in either:

1. a witness statement; or
2. a statement of case provided that it is verified by a statement of truth; or
3. the application notice provided that it is verified by a statement of truth;

unless the Court, a Law, a Rule or a Practice Direction requires evidence by affidavit.

The evidence must set out the facts on which the applicant relies for the claim being made against the respondent, including all material facts of which the Court should be made aware.

Where an application is made without notice to the respondent, the evidence must also set out why notice was not given.

Application for an interim remedy where there is no related claim

Where a party wishes to apply for an interim remedy but:

1. the remedy is sought in relation to proceedings which are taking place, or will take place, outside the DIFC; or
2. the application is made for an order for production of documents or inspection of property before a claim is made;

any application must be made in accordance with Part 8.

Orders for injunctions

Any order for an injunction, unless the Court orders otherwise, must contain:

1. (save where the applicant is the DFSA or the Registrar of Companies) an undertaking by the applicant to the Court to pay any damages which the respondent sustains which the Court considers the applicant should pay. Where the applicant for an interim remedy is not able to show sufficient assets within the jurisdiction of the Court to provide substance to the undertakings given he may be required to reinforce his undertakings by providing security:

   1. Security will be ordered in such form as the Judge decides is appropriate but may, for example, take the form of a payment into Court, a bond issued by an insurance company or a first demand guarantee or standby credit issued by a first-class bank;
   2. In an appropriate case the Judge may order a payment to be made to the applicant's legal representatives to be held by them as officers of the Court pending further order. The undertaking of a parent company may be acceptable;

2. if made without notice to any other party, an undertaking by the applicant to the Court to serve on the respondent the application notice, evidence in support and any order made as soon as practicable;

3. if made without notice to any other party, a return date for a further hearing at which the other party can be present;

4. if made before filing the application notice , an undertaking to file and pay the appropriate fee on the same or next working day; and

5. if made before issue of a claim form:

6. an undertaking to issue a claim form and pay the appropriate fee on the same or next working day; or

7. directions for the commencement of the claim.

When the Court makes an order for an injunction, it should consider whether to require an undertaking by the applicant to pay any damages sustained by a person other than the respondent, including another party to the proceedings or any other person who may suffer loss as a consequence of the order.

Any order for an injunction must set out clearly what the respondent must do or not do.

An order for an interim remedy should normally include a proviso which permits acts which would otherwise be a breach of the order to be done with the written consent of the claimant's legal representatives. This enables the parties to agree in effect to variations (or the discharge) of the order without the necessity of coming back to the Court.

If the parties agree, the return date may be postponed to a later date on which all parties will be ready to deal with any substantive issues. In this event, an agreed form of order continuing the injunction to the postponed return date should be submitted for consideration by a Judge and if the order is made in the terms submitted there will be no need for the parties to attend on the day originally fixed as the return date. In such a case the defendant and any other interested party will continue to have liberty to apply to vary or set aside the order.

A provision for the defendant to give notice of any application to discharge or vary the order is usually included as a matter of convenience but will not fetter the right of the defendant to apply without notice or on short notice if need be.

An order for an injunction made in the presence of all parties to be bound by it or made at a hearing of which they have had notice, may state that it is effective until trial or further order.

A phrase indicating that an interim remedy is to remain in force until judgment or further order means that it remains in force until the delivery of a final judgment. If an interim remedy continuing after judgment is required, say until judgment has been satisfied, an application to that effect must be made.

Freezing orders

An example of a freezing order is set out in Schedule A to this Part.

The example may be modified as appropriate in any particular case. In particular, the Court may, if it considers it appropriate, require the applicant's legal representatives, as well as the applicant, to give undertakings.

As regards freezing orders in respect of assets outside the jurisdiction, the standard wording in relation to effects on third parties should normally incorporate wording to enable overseas branches of banks or similar institutions which have offices within the jurisdiction to comply with what they reasonably believe to be their obligations under the laws of the country where the assets are located or under the proper law of the relevant banking or other contract relating to such assets.

Any bank or third party served with, notified of or affected by a freezing order may apply to the Court without notice to any party for directions, or notify the Court in writing without notice to any party, in the event that the order affects or may affect the position of the bank or third party under legislation, regulations or procedures aimed to prevent money laundering.

Search orders

The following provisions apply to search orders in addition to those listed above.

The Supervising Legal Representative

The Supervising Legal Representative must be experienced in the operation of search orders.

Evidence

The affidavit must state the name, firm and its address, and experience of the Supervising Legal Representative, also the address of the premises and whether it is a private or business address.

The affidavit must set out very fully the reason the order is sought, including the probability that relevant material would disappear if the order were not made.

Service

The order must be served personally by the Supervising Legal Representative, unless the Court otherwise orders, and must be accompanied by the evidence in support and any documents capable of being copied.

Confidential exhibits need not be served but they must be made available for inspection by the respondent in the presence of the applicant's legal representatives while the order is carried out and afterwards be retained by the respondent's legal representatives on their undertaking not to permit the respondent:

1. to see them or copies of them except in their presence; and
2. to make or take away any note or record of them.

The Supervising Legal Representative may be accompanied only by the persons mentioned in the order.

The Supervising Legal Representative must explain the terms and effect of the order to the respondent in everyday language (with the assistance of an interpreter if necessary) and advise him:

1. of his right to take legal advice and to apply to vary or discharge the order; and

2. that he may be entitled to avail himself of:

3. legal professional privilege; and

4. the privilege against self-incrimination.

Where the Supervising Legal Representative is a man and the respondent is likely to be an unaccompanied woman, at least one other person named in the order must be a woman and must accompany the Supervising Legal Representative.

The order may only be served between 9.30 a.m. and 5.30 p.m. Sunday to Thursday unless the Court otherwise orders.

Search and custody of materials

No material shall be removed unless clearly covered by the terms of the order.

The premises must not be searched and no items shall be removed from them except in the presence of the respondent or a person who appears to be a responsible employee of the respondent.

Where copies of documents are sought, the documents should be retained for no more than 2 days before return to the owner.

Where material in dispute is removed pending trial, the applicant's legal representatives should place it in the custody of the respondent's legal representatives on their undertaking to retain it in safekeeping and to produce it to the Court when required.

In appropriate cases the applicant should insure the material retained in the respondent's legal representatives' custody.

The Supervising Legal Representative must make a list of all material removed from the premises and supply a copy of the list to the respondent.

No material shall be removed from the premises until the respondent has had reasonable time to check the list.

If any of the listed items exists only in computer readable form, the respondent must immediately give the applicant's legal representatives effective access to the computers, with all necessary passwords, to enable them to be searched, and cause the listed items to be printed out.

The applicant must take all reasonable steps to ensure that no damage is done to any computer or data.

The applicant and his representatives may not themselves search the respondent's computers unless they have sufficient expertise to do so without damaging the respondent's system.

The Supervising Legal Representative shall provide a report on the carrying out of the order to the applicant's legal representatives.

As soon as the report is received the applicant's legal representatives shall:

1. serve a copy of it on the respondent; and
2. file a copy of it with the Court.

Where the Supervising Legal Representative is satisfied that full compliance with Rules 25.53 and 25.54 above is impracticable, he may permit the search to proceed and items to be removed without compliance with the impracticable requirements.

General

The Supervising Legal Representative must not be an employee or member of the applicant's firm of legal representatives.

If the Court orders that the order need not be served by the Supervising Legal Representative, the reason for so ordering must be set out in the order.

The search order must not be carried out at the same time as a police search warrant.

An example of a Search Order is set out in Schedule B to this Part. The example may be modified as appropriate in any particular case.

Applications to discharge or vary freezing orders and search orders

Applications to discharge or vary freezing orders and search orders are treated as matters of urgency for listing purposes. Those representing applicants for discharge or variation should ascertain before a date is fixed for the hearing whether, having regard to the evidence which they wish to adduce, the claimant would wish to adduce further evidence in opposition. If so, all reasonable steps must be taken by all parties to agree upon the earliest practicable date at which they can be ready for the hearing, so as to avoid the last minute need to vacate a fixed date. In cases of difficulty the matter should be referred to a Judge who may be able to suggest temporary solutions pending the hearing.

If a freezing order or search order is discharged on an application to discharge or vary, or on the return date, the Judge will consider whether it is appropriate that he should assess damages at once and direct immediate payment by the applicant.

Interim injunction to cease if claim is stayed

If:

1. the Court has granted an interim injunction other than a freezing order; and
2. the claim is stayed other than by agreement between the parties;

the interim injunction shall be set aside unless the Court orders that it should continue to have effect even though the claim is stayed.

Interim injunction to cease after 14 days if claim struck out

If:

1. the Court has granted an interim injunction ; and
2. the claim is struck out under Rule 4.31 (sanctions for non-payment of certain fees);

the interim injunction shall cease to have effect 14 days after the date that the claim is struck out unless Rule 25.68 applies.

If the claimant applies to reinstate the claim before the interim injunction ceases to have effect under Rule 25.67, the injunction shall continue until the hearing of the application unless the Court orders otherwise.

Injunctions against third parties

Rule 25.70 applies to orders which will affect a person other than the applicant or respondent, who:

1. did not attend the hearing at which the order was made; and
2. is served with the order.

Where such a person served with the order requests:

1. a copy of any materials read by the Judge, including material prepared after the hearing at the direction of the Judge or in compliance with the order; or
2. a note of the hearing;

the applicant, or his legal representative, must comply promptly with the request, unless the Court orders otherwise.

Inspection of property before commencement or against a non-party

Where a person makes an application under Rules 25.1(9) or 25.1(10):

1. the evidence in support of such an application must show, if practicable by reference to any statement of case prepared in relation to the proceedings or anticipated proceedings, that the property:

   1. is or may become the subject matter of such proceedings; or
   2. is relevant to the issues that will arise in relation to such proceedings; and

2. he must serve a copy of the application notice and a copy of the evidence in support on:

3. the person against whom the order is sought; and

4. in relation to an application under Rule 25.1(10), every party to the proceedings other than the applicant.

Delivery-up orders

Where orders, other than search orders, have been made for delivery up or preservation of evidence or property where it is likely that such an order will be executed at the premises of the respondent or a third party, the Court shall consider whether to include in the order for the benefit or protection of the parties similar provisions to those specified above in relation to injunctions and search orders.

II - Interim payments

Interim payments — General procedure

The claimant may not apply for an order for an interim payment before the end of the period for filing an acknowledgment of service applicable to the defendant against whom the application is made.

The claimant may make more than one application for an order for an interim payment.

An application for an interim payment must be supported by evidence.

The timetable for an application for an interim payment for is as follows:

1. evidence in support must be filed and served with the application;
2. evidence in answer must be filed and served within 14 days thereafter;
3. evidence in reply (if any) must be filed and served within 7 days thereafter.

Rule 25.76 does not require written evidence:

1. to be filed if it has already been filed; or
2. to be served on a party on whom it has already been served.

The Court may order an interim payment in one sum or in instalments.

Evidence

An application for an interim payment of damages must be supported by evidence dealing with the following:

1. the sum of money sought by way of an interim payment;
2. the items or matters in respect of which the interim payment is sought;
3. the sum of money for which final judgment is likely to be given;
4. the reasons for believing that the conditions set out in Rule 25.81 are satisfied;
5. any other relevant matters; and
6. in claims for personal injuries, details of special damages and past and future loss.

Any documents in support of the application should be exhibited, including, in personal injuries claims, the medical report(s).

Interim payments — conditions to be satisfied and matters to be taken into account

The Court may only make an order for an interim payment where any of the following conditions are satisfied:

1. the defendant against whom the order is sought has admitted liability to pay damages or some other sum of money to the claimant;
2. the claimant has obtained judgment against that defendant for damages to be assessed or for a sum of money (other than costs) to be assessed;
3. it is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against the defendant from whom he is seeking an order for an interim payment whether or not that defendant is the only defendant or one of a number of defendants to the claim; or
4. in a claim in which there are two or more defendants and the order is sought against any one or more of those defendants, the following conditions are satisfied:
   1. the Court is satisfied that, if the claim went to trial, the claimant would obtain judgment for a substantial amount of money (other than costs) against at least one of the defendants (but the Court cannot determine which); and
   2. all the defendants are either:
      1. a defendant that is insured in respect of the claim;
      2. a defendant that is a Centre Body.

The Court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.

The Court must take into account:

1. contributory negligence; and
2. any relevant set-off or counterclaim.

Interim payment where account to be taken

Where a party seeks an interim payment under Rule 25.81(2) where the Court has ordered an account to be taken, if the evidence on the application for interim payment shows that the account is bound to result in a payment to the applicant, the Court will, before making an order for interim payment, order that the liable party pay to the applicant ‘the amount shown by the account to be due’.

Instalments

Where an interim payment is to be paid in instalments the order should set out:

1. the total amount of the payment;
2. the amount of each instalment;
3. the number of instalments and the date on which each is to be paid; and
4. to whom the payment should be made.

Powers of Court where it has made an order for interim payment

Where a defendant has been ordered to make an interim payment, or has in fact made an interim payment (whether voluntarily or under an order), the Court may make an order to adjust the interim payment.

The Court may in particular:

1. order all or part of the interim payment to be repaid;
2. vary or discharge the order for the interim payment;
3. order a defendant to reimburse, either wholly or partly, another defendant who has made an interim payment.

The Court may make an order under Rule 25.87(3) only if:

1. the defendant to be reimbursed made the interim payment in relation to a claim in respect of which he has made a claim against the other defendant for a contribution, indemnity or other remedy; and
2. where the claim or part to which the interim payment relates has not been discontinued or disposed of, the circumstances are such that the Court could make an order for interim payment under Rule 25.81.

The Court may make an order under Rule 25.86 without an application by any party if it makes the order when it disposes of the claim or any part of it.

Where:

1. a defendant has made an interim payment; and
2. the amount of the payment is more than his total liability under the final judgment or order;

the Court may award him interest on the overpaid amount from the date when he made the interim payment.

Adjustment of final judgment figure

In Rules 25.92 to 25.95 ‘judgment’ means:

1. any order to pay a sum of money;
2. a final award of damages;
3. an assessment of damages.

In a final judgment where an interim payment has previously been made which is less than the total amount awarded by the Judge, the order should set out in a preamble:

1. the total amount awarded by the Judge; and
2. the amounts and dates of the interim payment(s).

The total amount awarded by the Judge should then be reduced by the total amount of any interim payments, and an order made for entry of judgment and payment of the balance.

In a final judgment where an interim payment has previously been made which is more than the total amount awarded by the Judge, the order should set out in a preamble:

1. the total amount awarded by the Judge; and
2. the amounts and dates of the interim payment(s).

An order should then be made for repayment, reimbursement, variation or discharge under Rule 25.87 and for interest on an overpayment under Rule 25.90.

Restriction on disclosure of an interim payment

The fact that a defendant has made an interim payment, whether voluntarily or by Court order, shall not be disclosed to the trial Judge until all questions of liability and the amount of money to be awarded have been decided unless the defendant agrees.

III - Security for costs

A defendant to any claim may apply under this Section of this Part for security for his costs of the proceedings.

An order for security for costs may not be made against the DFSA or the Registrar of Companies in proceedings initiated by the DFSA or the Registrar of Companies under DIFC Law.

An application for security for costs must be supported by written evidence, setting out:

1. the grounds on which security is sought;
2. any factors relevant to the exercise of the Court's discretion, such as the location of the claimant's assets and any practical difficulties which may arise in enforcing any order for costs;
3. a statement of costs already incurred, including the information required by RDC 38.35 and signed by the party or his legal representative; and
4. An estimate of anticipated future costs calculated by reference to the elements set out at RDC 38.35 and signed by the party or his legal representative.

Where the Court makes an order for security for costs, it will:

1. determine the amount of security; and
2. direct:
   1. the manner in which; and
   2. the time within which;

the security must be given.

Conditions to be satisfied

The Court may make an order for security for costs under Rule 25.100 if it is satisfied, having regard to all the circumstances of the case that it is just to make such an order; and

1. one or more of the conditions in Rule 25.102 applies; or
2. an enactment permits the Court to require security for costs.

The conditions are:

1. the claimant is resident out of the UAE;
2. the claimant is a company or other body (whether incorporated inside or outside the DIFC) and there is reason to believe that it will be unable to pay the defendant's costs if ordered to do so;
3. the claimant has changed his address since the claim was commenced with a view to evading the consequences of the litigation;
4. the claimant failed to give his address in the claim form, or gave an incorrect address in that form;
5. the claimant is acting as a nominal claimant, other than as a representative claimant under Part 20, and there is reason to believe that he will be unable to pay the defendant's costs if ordered to do so;
6. the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.

Security for costs other than from the claimant

The defendant may seek an order against someone other than the claimant, and the Court may make an order for security for costs against that person if:

1. it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and
2. one or more of the conditions in Rule 25.104 applies.

The conditions are that the person:

1. has assigned the right to the claim to the claimant with a view to avoiding the possibility of a costs order being made against him; or
2. has contributed or agreed to contribute to the claimant's costs in return for a share of any money or property which the claimant may recover in the proceedings; and

is a person against whom a costs order may be made.

Security for costs of an appeal

The Court may order security for costs of an appeal against:

1. an appellant;
2. a respondent who also appeals;

on the same grounds as it may order security for costs against a claimant under this Part.

The Court may also make an order under Rule 25.105 where the appellant, or the respondent who also appeals, is a limited company and there is reason to believe it will be unable to pay the costs of the other parties to the appeal should its appeal be unsuccessful.

First applications

First applications for security for costs should not be made later than at the Case Management Conference and in any event any application should not be left until close to the trial date. Delay to the prejudice of the other party or the administration of justice will probably cause the application to fail, as will any use of the application to harass the other party. Where it is intended to make an application for security at the Case Management Conference the procedure, and timetable for evidence, for an ordinary application must be followed.

Successive applications

Successive applications for security can be granted where the circumstances warrant. If a claimant wishes to seek to preclude any further application, it is incumbent on him to make that clear.

Evidence

An affidavit or witness statement in support of an application for security for costs should deal not only with the residence of the claimant (or other respondent to the application) and the location of his assets but also with the practical difficulties (if any) of enforcing an order for costs against him.

Investigation of the merits of the case

Investigation of the merits of the case on an application for security is strongly discouraged. Only in those cases where it can be shown without detailed investigation of evidence or law that the claim is certain or almost certain to succeed or fail will the merits be taken into consideration.

Undertaking by the applicant

In appropriate cases an order for security for costs may only be made on terms that the applicant gives an undertaking to comply with any order that the Court may make if the Court later finds that the order for security for costs has caused loss to the claimant and that the claimant should be compensated for such loss. Such undertakings are intended to compensate claimants in cases where no order for costs is ultimately made in favour of the applicant.

Stay of proceedings

It is not usually convenient or appropriate to order an automatic stay of the proceedings pending the provision of the security. It leads to delay and may disrupt the preparation of the case for trial, or other hearing. Experience has shown that it is usually better to give the claimant (or other relevant party) a reasonable time within which to provide the security and the other party permission to apply to the Court in the event of default. This enables the Court to allow the claimant to choose if he wishes to provide the security and, if he does not, to dismiss the case.

Amount of security

Where the dispute on an application for security for costs relates to the correct evaluation of the amount of costs likely to be allowed to a successful defendant on an assessment of costs, parties should consider whether it would be advantageous for the Judge hearing the application to sit with a the Registrar as an informal assessor. The Judge himself may take such an initiative.

Schedule A

FREEZING ORDER

Schedule B

SEARCH ORDER

Part 26 - Case Management

Case Management Conference

1. The Court may fix a Case Management Conference at any time on its own initiative. If it does so, the Court will give at least 14 days' notice to the parties, unless there are compelling reasons for a shorter period of notice.
2. A party may apply in writing for a Case Management Conference at any time. Such application must, state the reasons why a case management conference is necessary.

A Case Management Conference may not be postponed or adjourned without an order of the Court.

Requirements for a Case Management Conference

Not less than 7 days before a Case Management Conference, each party must file and serve:

1. a completed Case Management Information Sheet. A standard form of Case Management Information Sheet is set out in Schedule A to this Part; and
2. an application notice for any order which that party intends to seek at the Case Management Conference, other than directions referred to in the Case Management Information Sheet.

Where a party wishes to obtain an order not routinely made at a Case Management Conference and believes that his application will be opposed, he should issue and serve the application in time for it to be heard at the Case Management Conference.

If the time allowed for the Case Management Conference is likely to be insufficient for the application to be heard, the applicant should inform the Court at once so that a fresh date can be fixed.

A costs sanction may be imposed on a party who fails to comply with Rules 26.4 and 26.5.

Unless the Court orders otherwise, the claimant, in consultation with the other parties, must produce:

1. a Case Memorandum (see Rules 26.8 to 26.14);
2. a list of issues (see Rule 26.9); and
3. a Case Management Bundle (see Rules 26.16 to 26.18);

and provide copies of the Case Management Bundle for the Court and the other parties at least 7 days before the first Case Management Conference or any earlier hearing at which the Court may give case management directions.

Case Memorandum

In order that the Judge conducting the Case Management Conference may be informed of the general nature of the case and the issues which are expected to arise, after service of the defence and any reply, the legal representatives of each party shall agree a Case Memorandum.

The Case Memorandum should contain:

1. a short and uncontroversial description of what the case is about;
2. a very short and uncontroversial summary of the material procedural history of the case;
3. an agreed list of the important issues in the case. The list should include both issues of fact and issue of law. A separate section of the document should list what is common ground between the parties (or any of them, specifying which).

Unless otherwise ordered, the legal representatives of the claimant are to have responsibility for the production and revision of the list of issues.

Unless otherwise ordered, the legal representatives of the claimant are to be responsible for producing and filing the Case Memorandum.

The Case Memorandum should not refer to any application for an interim payment, to any order for an interim payment, to any voluntary interim payment, or to any payment or offer under Part 32 or Part 33.

It should be clearly understood that the only purpose of the Case Memorandum is to help the Judge understand broadly what the case is about. The Case Memorandum does not play any part in the trial. It is unnecessary, therefore, for parties to be unduly concerned about the precise terms in which it is drafted, provided it contains a reasonably fair and balanced description of the case.

Accordingly, in all but the most exceptional cases it should be possible for the parties to draft an agreed Case Memorandum. However, if it proves impossible to do so, the claimant must draft the Case Memorandum and send a copy to the defendant. The defendant may provide its comments to the Court (with a copy to the claimant) separately.

The failure of the parties to agree a Case Memorandum is a matter which the Court may wish to take into account when dealing with the costs of the Case Management Conference.

Case Management Bundle

Preparation

Before the Case Management Conference, a Case Management Bundle should be prepared by the legal representatives of the claimant.

Contents

The Case Management Bundle should only contain the documents listed below (where the documents have been created by the relevant time):

1. the claim form;
2. all statements of case (excluding schedules), except that, if a summary has been prepared, the bundle should contain the summary, not the full statement of case;
3. the Case Memorandum;
4. the list of issues;
5. the Case Management Information Sheets and the pre-trial timetable if one has already been established;
6. the principal orders in the case; and
7. any agreement in writing made by the parties to produce documents without making a list or any agreement in writing that production shall take place in stages.

The Case Management Bundle must not include a copy of any order for an interim payment.

Lodging the Case Management Bundle

The Case Management bundle should be lodged with the Registry at least 7 days before the (first) Case Management Conference (or earlier hearing at which the parties are represented and at which the business of the Case Management Conference may be transacted).

Preparation and Upkeep

The claimant (or other party responsible for the preparation and upkeep of the Case Management Bundle), in consultation with the other parties, must revise and update the Case Management Bundle as the case proceeds.

Case Management Conference

Application to Postpone the Case Management Conference

An application to postpone the Case Management Conference must be made within 21 days after all defendants who intend to serve a defence have done so.

The application will be dealt with, without a hearing unless the Court considers it appropriate to direct an oral hearing.

Attendance at the Case Management Conference

Clients need not attend a Case Management Conference unless the Court otherwise orders.

A legal representative who:

1. is familiar with the case; and
2. has sufficient authority to deal with any issues that are likely to arise;

must attend on behalf of each of the parties.

That person should be someone who is personally involved in the conduct of the case, and who has the authority and information to deal with any matter which may reasonably be expected to be dealt with at such a hearing, including the fixing of the timetable, the identification of issues and matters of evidence.

Where the inadequacy of the person attending or of his instructions leads to the adjournment of a hearing, the Court will expect to make a costs order against the legal representative.

Applications

If by the time of the Case Management Conference a party wishes to apply for an order in respect of a matter not covered by Questions (1)–(14) in the Case Management Information Sheet, he should make that application at the Case Management Conference.

In some cases notice of such an application may be given in the Case Management Information Sheet itself. See Rule 26.32.

In all other cases the applicant should ensure that an application notice and any supporting evidence is filed and served in time to enable the application to be heard at the Case Management Conference.

Materials: Case Management Information Sheet and Case Management Bundle

All parties attending a Case Management Conference must complete a Case Management Information Sheet. The information sheet is intended to include reference to all applications which the parties would wish to make at a Case Management Conference.

A completed Case Management Information Sheet must be provided by each party to the Court (and copied to all other parties) at least 7 days before the Case Management Conference.

Applications not covered by the standard questions raised in the Case Management Information Sheet should be entered under Question (15). No other application notice is necessary if written evidence will not be involved and the 7 day notice given by entering the application on the information sheet will in all the circumstances be sufficient to enable all other parties to deal with the application.

The Case Management Bundle must be provided to the Court at least 7 days before the Case Management Conference. Only where it is essential for the Court on the Case Management Conference to see the full version of a statement of case that has been summarised should a copy of that statement of case be lodged for the Case Management Conference.

The Hearing

At the Case Management Conference, the Judge will:

1. discuss the issues in the case, and the requirements of the case, with the legal representatives retained in the case;
2. review the steps which the parties have taken in the preparation of the case, and in particular their compliance with any directions that the Court may have given;
3. decide and give directions about the steps which are to be taken to secure the progress of the claim in accordance with the overriding objective;
4. ensure as far as it can that all agreements that can be reached between the parties about the matters in issue and the conduct of the claim are made and recorded; and
5. fix the entire pre-trial timetable, or, if that is not practicable, fix as much of the pre-trial timetable as possible.

The topics the Court will consider at a Case Management Conference are likely to include:

1. whether the claimant has made clear the claim he is bringing, in particular the amount he is claiming, so that the other party can understand the case he has to meet;
2. whether any amendments are required to the claim, a statement of case or any other document;
3. what production of documents, if any, is necessary;
4. what expert evidence is reasonably required in accordance with Part 31 and how and when that evidence should be obtained and exchanged;
5. what factual evidence should be exchanged;
6. what arrangements should be made about the giving of clarification or further information and the putting of questions to experts; and
7. whether it will be just and will save costs to order a split trial or the trial of one or more preliminary issues.

In all cases the Court will set a timetable for the steps it decides are necessary to be taken. These steps may include the holding of a further Case Management Conference or a Pre-Trial Review, and the Court will be alert to perform its duty to fix a trial date or period as soon as it can.

The Court will not at this stage give permission to use expert evidence unless it can identify each expert by name or field in its order and say whether his evidence is to be given orally or by the use of his report.

A party who obtains expert evidence before obtaining a direction about it does so at his own risk as to costs.

To assist the Court, the parties and their legal representatives should:

1. ensure that all documents that the Court is likely to ask to see (including witness statements and experts' reports) are brought to the hearing;
2. consider whether the parties should attend; and
3. consider what orders each wishes to be made and give notice of them to the other parties.

Order for Alternative Dispute Resolution

In appropriate cases make an order for alternative dispute resolution in accordance with Part 27.

The Case Management Information Sheet requires the parties to indicate whether a stay for such purposes is sought.

In an appropriate case an order for alternative dispute resolution may be made without a stay of proceedings. The parties should consider carefully whether it may be possible to provide for alternative dispute resolution in the pre-trial timetable without affecting the date of trial.

Where a stay has been granted for a fixed period for the purposes of alternative dispute resolution the Court has power to extend it. If an extension of the stay is desired by all parties, the Court will normally be prepared to deal with an application for such an extension if it is made before the expiry of the stay by letter from the legal representatives of one of the parties. The letter should confirm that all parties consent to the application.

An extension will not normally be granted for more than four weeks unless clear reasons are given to justify a longer period, but more than one extension may be granted.

The Pre-Trial Timetable

The pre-trial timetable will normally include:

1. a progress monitoring date (see Rule 26.56 below); and
2. a direction that the parties meet with the Registrar to obtain a fixed date for trial.

Variations to the Pre-Trial Timetable

The parties may agree minor variations to the time periods set out in the pre-trial timetable without the case needing to be brought back to the Court provided that the variation:

1. will not jeopardise the date fixed for trial;
2. does not relate to the progress monitoring date; and
3. does not provide for the completion after the progress monitoring date of any step which was previously scheduled to have been completed by that date.

If in any case it becomes apparent that variations to the pre-trial timetable are required which do not fall within Rule 26.46 above, the parties should apply to have the Case Management Conference reconvened immediately. The parties should not wait until the progress monitoring date.

Case Management Conference: Part 8 claims

In a case commenced by the issue of a Part 8 claim form, a Case Management Conference will normally take place on the first available date 6 weeks after service and filing of the defendant's evidence. At that Case Management Conference the Court will make such pre-trial directions as are necessary, adapting (where useful in the context of the particular claim) those of the case management procedures used for a claim commenced by the issue of a Part 7 claim form.

Case Management Conference: Additional claims

Wherever possible, any party who intends to make an additional claim should do so before the hearing of the Case Management Conference dealing with the main claim.

Where permission to make an additional claim is required it should be sought at the Case Management Conference in the main claim.

If the additional claim is a counterclaim by a defendant against a claimant alone, the Court will give directions in the additional claim at the Case Management Conference in the main claim.

If the additional claim is not a counterclaim by a defendant against a claimant alone, the Case Management Conference in the main claim will be reconvened on the first available date 6 weeks after service of the defence to the additional claim.

All parties to the proceedings (i.e. the parties to the main claim and the parties to the additional claim) must attend the reconvened Case Management Conference. There will not be a separate Case Management Conference for the additional claim alone.

In any case involving an additional claim the Court will give case management directions at the same Case Management Conferences as it gives directions for the main claim. The Court will therefore normally only give case management directions at hearings attended by all parties to the proceedings.

Management throughout the case

The Court will continue to take an active role in the management of the case throughout its progress to trial. Parties should be ready at all times to provide the Court with such information and assistance as it may require for that purpose.

Progress Monitoring

Fixing the Progress Monitoring Date

The progress monitoring date will be fixed at the Case Management Conference and will normally be after the date in the pre-trial timetable for exchange of witness statements and expert reports.

Progress Monitoring Information Sheet

At least 3 clear days before the progress monitoring date, the parties must each send to the Registrar (with a copy to all other parties) a progress monitoring information sheet to inform the Court:

1. whether they have complied with the pre-trial timetable, and if they have not, the respects in which they have not; and
2. whether they will be ready for a trial commencing on the fixed date specified in the pre-trial timetable, and if they will not be ready, why they will not be ready.

A standard form of progress monitoring information sheet is set out in Schedule B to this Part.

Reconvening the Case Management Conference

If in the view of the Court the information given in the progress monitoring sheets justifies this course, the Court may direct that the Case Management Conference be reconvened.

At a reconvened hearing of the Case Management Conference, the Court may make such orders and give such directions as it considers appropriate.

Pre-trial checklist

Not later than three days before the pre-trial review hearing each party must send to the Registrar (with a copy to all other parties) a completed checklist confirming final details for trial (a “Pre-Trial Checklist”) in the form set out in Schedule C to this Part.

Further information

If a party declines to provide further information requested under Part 19, the legal representatives of the parties concerned must communicate directly with each other in an attempt to reach agreement before any application is made to the Court.

No application for an order that a party provide further information will normally be listed for hearing without prior written confirmation from the applicant that the requirements of Rule 26.62 have been complied with.

Fixed trial dates

Most cases will be given fixed trial dates immediately after the pre-trial timetable has been set at the Case Management Conference.

A fixed date for trial is given on the understanding that if previous fixtures have been substantially underestimated or other urgent matters need to be heard, the trial may be delayed. Where such delay might cause particular inconvenience to witnesses or others involved in the trial, the Registrar should be informed well in advance of the fixed date.

Estimates of length of trial

At the Case Management Conference an estimate will be made of the minimum and maximum lengths of the trial. The estimate will appear in the pre-trial timetable and will be the basis on which a date for trial will be fixed.

If a party subsequently instructs new legal representatives to appear on his behalf at the trial, the Registrar should be notified of that fact within 14 days. Legal representatives newly instructed should review the estimate of the minimum and maximum lengths of the trial, and submit to the Registrar a signed note revising or confirming the estimate as appropriate.

A confirmed estimate of the minimum and maximum lengths of the trial, signed by the legal representatives who are to appear at the trial, should be attached to the pre-trial checklist.

It is the duty of all legal representatives who are to appear at the trial to seek agreement, if possible, on the estimated minimum and maximum lengths of trial.

The provisional estimate and (after it is given) the confirmed estimate must be kept under review by the legal representatives who are to appear at the trial. If at any stage an estimate needs to be revised, a signed revised estimate (whether agreed or not) must be submitted by the legal representatives to the Registrar.

Accurate estimation of trial length is of great importance to the efficient functioning of the Court. The Court will be guided by, but will not necessarily accept, the estimates given by the parties.

Pre-Trial Review and trial timetable

The Court will order a Pre-Trial Review in any case in which it considers it appropriate to do so.

A Pre-Trial Review will normally take place between 8 and 4 weeks before the date fixed for trial.

Whenever possible the Pre-Trial Review will be conducted by the trial Judge. It should be attended by the individual legal representatives who are to appear at the trial.

Before the Pre-Trial Review the parties must attempt to agree a timetable for the trial providing for oral submissions, witnesses of fact and expert evidence. The claimant must file a copy of the draft timetable at least two days before the date fixed for the Pre-Trial Review; any differences of view should be clearly identified. At the Pre-Trial Review the Judge may set a timetable for the trial and give such other directions for the conduct of the trial as he considers appropriate.

Orders

Except for orders made by the Court on its own initiative and unless the Court otherwise orders, every order will be drawn up by the parties.

Agreed orders are to be drawn up in accordance with the procedure described in Part 23.

All other orders are to be drawn up in draft by the parties and dated in the draft with the date of the Judge's decision. The claimant is to have responsibility for drafting the order, unless it was made on the application of another party in which case that other party is to have the responsibility.

Two copies of the draft, signed by the parties themselves, or by their legal representatives must be lodged with the Registry within five days of the decision of the Court reflected in the draft.

If the Court orders that an act be done by a certain date without specifying a time for compliance, the latest time for compliance is 4.00 p.m. on the day in question.

Orders that are required to be served must be served by the parties, unless the Court otherwise directs.

Failure to comply with Case Management Directions

Where a party fails to comply with a direction given by the Court any other party may apply for an order that he must do so or for a sanction to be imposed or both of these.

The party entitled to apply for such an order must do so without delay but should first warn the other party of his intention to do so.

The Court may take any such delay into account when it decides whether to make an order imposing a sanction or to grant relief from a sanction imposed by the rules or any other practice direction.

The Court will not allow a failure to comply with directions to lead to the postponement of the trial unless the circumstances are exceptional.

If it is practical to do so the Court will exercise its powers in a manner that enables the case to come on for trial on the date or within the period previously set.

In particular the Court will assess what steps each party should take to prepare the case for trial, direct that those steps are taken in the shortest possible time and impose a sanction for non-compliance. Such a sanction may, for example, deprive a party of the right to raise or contest an issue or to rely on evidence to which the direction relates.

Where it appears that one or more issues are or can be made ready for trial at the time fixed while others cannot, the Court may direct that the trial will proceed on the issues which are then ready, and direct that no costs will be allowed for any later trial of the remaining issues or that those costs will be paid by the party in default.

Where the Court has no option but to postpone the trial it will do so for the shortest possible time and will give directions for the taking of the necessary steps in the meantime as rapidly as possible.

Litigants and legal representatives must be in no doubt that the Court will regard the postponement of a trial as an order of last resort. Where it appears inevitable the Court may exercise its power to require a party as well as his legal representative to attend court at the hearing where such an order is to be sought.

The Court will not postpone any other hearing without a very good reason, and for that purpose the failure of a party to comply on time with directions previously given will not be treated as a good reason.

Schedule A to Part 26 - Case Management information sheet

Schedule B to Part 26 - Progress Monitoring information sheet

Schedule C to Part 26 - Pre-Trial checklist

Part 27 - Alternative Dispute Resolution

Alternative Dispute Resolution

While emphasising its primary role as a forum for deciding civil and commercial cases, the Court encourages parties to consider the use of alternative dispute resolution (such as, but not confined to, mediation and conciliation) as an alternative means of resolving disputes or particular issues.

Whilst the Court remains an entirely appropriate forum for resolving most of the disputes which are entered in the Court, the view of the Court is that the settlement of disputes by means of alternative dispute resolution:

1. significantly helps parties to save costs;
2. saves parties the delay of litigation in reaching finality in their disputes;
3. enables parties to achieve settlement of their disputes while preserving their existing commercial relationships and market reputation;
4. provides parties with a wider range of solutions than those offered by litigation; and
5. is likely to make a substantial contribution to the more efficient use of judicial resources.

The Judges will, in appropriate cases, invite the parties to consider whether their dispute, or particular issues in it, could be resolved through alternative dispute resolution.

Legal representatives in all cases should consider with their clients and the other parties concerned, the possibility of attempting to resolve the dispute or particular issues by alternative dispute resolution and should ensure that their clients are fully informed as to the most cost effective means of resolving their dispute.

Parties who consider that alternative dispute resolution might be an appropriate means of resolving the dispute or particular issues in the dispute, may apply for directions at any stage, including before service of the defence and before the case management conference.

At the Case Management Conference, if it should appear to the Judge that the case before him or any of the issues arising in it are particularly appropriate for an attempt at settlement by means of alternative dispute resolution, but that the parties have not previously attempted settlement by such means, he may invite the parties to use alternative dispute resolution.

The Judge may, if he considers it appropriate, adjourn the case for a specified period of time to encourage and enable the parties to use alternative dispute resolution. He may for this purpose extend the time for compliance by the parties or any of them with any requirement under the Rules or any order of the Court.

The Judge may further consider in an appropriate case, making an alternative dispute resolution order in the terms set out in the Schedule to this Part.

The Court will not recommend any individual or body to act as a neutral.

At the Case Management Conference or at any other hearing in the course of which the Judge makes an order providing for alternative dispute resolution, he may make such order as to the costs that the parties may incur by reason of their using or attempting to use alternative dispute resolution as may in all the circumstances seem appropriate.

Schedule to Part 27 - Draft order for alternative dispute resolution

1. On or before [] the parties shall exchange lists of 3 neutral individuals who are available to conduct alternative dispute resolution procedures in this case prior to []. Each party may [in addition] [in the alternative] provide a list identifying the constitution of one or more panels of neutral individuals who are available to conduct alternative dispute resolution procedures in this case prior to [*].
2. On or before [*] the parties shall in good faith endeavour to agree a neutral individual or panel from the lists so exchanged and provided.
3. Failing such agreement by [*] the Case Management Conference will be restored to enable the Court to facilitate agreement on a neutral individual or panel.
4. The parties shall take such serious steps as they may be advised to resolve their disputes by alternative dispute resolution procedures before the neutral individual or panel so chosen by no later than [*].
5. If the case is not finally settled, the parties shall inform the Court by letter prior to [production of documents/exchange of witness statements/exchange of experts' reports] what steps towards alternative dispute resolution have been taken and (without prejudice to matters of privilege ) why such steps have failed. If the parties have failed to initiate alternative dispute resolution procedures, the Case Management Conference is to be restored for further consideration of the case.
6. [Costs].

Note:

The term “alternative dispute resolution procedures” is deliberately used in the draft alternative dispute resolution order. This is in order to emphasise that (save where otherwise provided) the parties are free to use the alternative dispute resolution procedure that they regard as most suitable, be it mediation, early neutral evaluation, non-binding arbitration, etc.

Part 28 - Production of documents

Meaning of document

In this Part:

1. ‘document’ means anything in which information of any description is recorded; and
2. ‘copy’, in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.

The definition of a document extends to electronic documents, including email and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devices and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been ‘deleted’. It also extends to additional information stored and associated with electronic documents known as metadata.

Production of copies

A party need not produce more than one copy of a document.

A copy of a document must conform fully to the original. At the request of the Court, any original must be presented for inspection. A copy of a document that contains a modification, obliteration or other marking or feature shall be treated as a separate document. Parties should not redact documents which they produce without the agreement of the other parties or the permission of the Court.

Documents referred to in statements of case, etc.

A party may inspect a document mentioned in:

1. a statement of case;
2. a witness statement;
3. a witness summary; or
4. an affidavit.

An application for an order requiring a party to produce a document referred to in RDC rule 28.5 should be made in accordance with Part 23.

If a party wishes to inspect documents referred to in the expert report of another party, before issuing an application he should request inspection of the documents informally, and inspection should be provided by agreement unless the request is unreasonable.

Subject to Rule 31.53, a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been produced in the proceedings.

Where an expert report refers to a large number or volume of documents and it would be burdensome to copy or collate them, the Court will only order inspection of such documents if it is satisfied that it is necessary for the just disposal of the proceedings and the party cannot reasonably obtain the documents from another source.

Cooperation between the parties

The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties seeking and providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties, their document retention policies and the anticipated time and cost of carrying out any searches which might be requested.

Where the number or volume of documents to be searched is likely to be extensive, the parties should, where possible, seek to exchange preliminary production requests in draft form before standard production of documents takes place. Any such exchange shall not limit the parties' rights to submit further requests to produce after standard production in accordance with RDC 28.16.

The parties should co-operate at an early stage as to the format in which electronic copy documents are to be provided on production of documents.

If the physical structure of a file is or is claimed to be of evidential value:

1. Any such claim should be raised at the earliest opportunity; and
2. The legal representatives of the party holding the file should make one complete copy of the file in the form in which they received it before any documents are removed for the purpose of producing documents.

In the case of difficulty or disagreement on any of the matters referred to at RDC 28.10 to 28.13 above, the matter should be referred to a Judge for directions at the earliest practical date, if possible at the first Case Management Conference.

Standard production of documents

Within the time ordered by the Court, each party shall submit to the other parties:

1. all documents available to it on which it relies, including public documents and those in the public domain, except for any documents that have already been submitted by another party; and
2. the documents which he is required to produce by any Law, Rule or Practice Direction.

Request to produce

Within the time ordered by the Court, any party may submit to the other party a Request to Produce.

A Request to Produce shall contain:

1. a description of a requested document sufficient to identify it; or
2. a description in sufficient detail (including subject matter) of a narrow and specific requested category of documents that are reasonably believed to exist;
3. a description of how the documents requested are relevant and material to the outcome of the case; and
4. a statement of the reason why that party believes the documents requested to be in the possession, custody or control of the other party and either:
   1. a statement that the documents requested are not in the possession, custody or control of the requesting party, or
   2. a statement of the reasons why it would be unreasonably burdensome for the requesting party to produce such documents.

A Request to Produce should be set out substantially in the form of Schedule A to this Part.

In the case of documents which are or which are likely to be maintained in electronic form, the requesting party may, or the Court may order that it shall be required to, identify specific files, search terms, individuals or other means of searching for such documents in an efficient and economical manner.

Production of documents as to which no objection is made

Within the time ordered by the Court, the party to whom the Request to Produce is addressed shall:

1. Carry out a reasonable search for the documents in his possession, custody or control as to which no objection is made;
2. produce to the other parties all such requested documents which have been identified by such search as to which no objection is made;
3. Provide to the other parties information about his document retention policy and the nature of the searches which have been undertaken; and
4. State that, to the best of his knowledge, he has produced copies of all documents in his possession, custody and control which have been requested and to which no objection is raised. Such statement should be supported by a statement of truth.

The factors that may be relevant in deciding the reasonableness of a search for electronic documents include (but are not limited to) the following:

1. the number of documents involved;
2. the nature and complexity of the proceedings;
3. the ease and expense of retrieval of any particular document. This includes:
   1. the accessibility of electronic documents or data including email communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the producing party and/or available to enable access to such documents;
   2. the location of relevant electronic documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;
   3. the likelihood of locating relevant data;
   4. the cost of recovering any electronic documents;
   5. the cost of producing any relevant electronic documents;
   6. the likelihood that electronic documents will be materially altered in the course of recovery, or production;
4. the significance of any document which is likely to be located during the search.

It may be reasonable to search some or all of the parties' electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

The parties should seek to agree in advance the parameters of any search of electronic documents, including:

1. The electronic databases to be searched; and
2. Any search terms to be used.

Where possible, any dispute about the parameters of any electronic search should be referred to the Court for determination before the relevant search is carried out. This is particularly important where the volume of documents to be searched is large or the searches are likely to be time consuming or expensive.

The Court may take into account any failure to comply with RDC 28.23 and 28.24 in any assessment of costs.

Objection to Request to Produce

If the party to whom the Request to Produce is addressed has objections to the production of some or all of the documents requested, he shall state them in writing within the time ordered by the Court. The reasons for such objections shall be any of those set out in Rule 28.28.

A party's objections to production in accordance with RDC 28.16 should be recorded in a schedule substantially in the form of Schedule A to this Part.

Grounds for excluding documents from production

The Court may, at the request of a party or on its own initiative, exclude from production any document for any of the following reasons:

1. lack of sufficient relevance or materiality;
2. legal impediment or privilege under the legal or ethical rules determined by the Court to be applicable;
3. unreasonable burden to produce the requested evidence;
4. loss or destruction of the document that has been reasonably shown to have occurred;
5. grounds of commercial or technical confidentiality that the Court determines to be compelling;
6. grounds of special political or institutional sensitivity (including evidence that has been classified as secret by a government or a public international institution) that the Court determines to be compelling; or
7. considerations of procedural economy, proportionality, fairness or equality of the parties that the Court determines to be compelling.

A person who wishes to claim that he has a right or a duty to withhold production of a document, or part of a document , must state in writing—

1. that he has such a right or duty; and
2. the grounds on which he claims that right or duty.

A party may apply to the Court to decide whether a claim made under Rule 28.29 should be upheld.

Public interest objection

A person may apply, without notice, for an order permitting him to withhold production of a document on the ground that production would damage the public interest.

Unless the Court orders otherwise, an order of the Court under Rule 28.31—

1. must not be served on any other person; and
2. must not be open to inspection by any person.

For the purpose of deciding an application under Rule 28.29 (duty to withhold production) or Rule 28.31 (public interest objection) the Court may:

1. require the person seeking to withhold production of a document to produce that document to the Court; and
2. invite any person, whether or not a party, to make representations.

An application under Rules 28.29 or 28.31:

1. Should be made within the time ordered by the Court for objecting to the production of documents; and
2. must be supported by evidence.

This Part does not affect any rule of law which permits or requires a document to be withheld from production on the ground that its production would damage the public interest.

Document Production Order

Where a requesting party considers:

1. That a responding party's objection to production is not justified; or
2. That the responding party has failed to carry out a reasonable search for documents which have been requested or has otherwise failed, without objection, to produce such documents which are within his possession, custody or control,

the requesting party may apply to the Court for a Document Production Order.

An application for a Document Production Order should be supported by a schedule substantially in the form of Schedule A to this Part.

The Court may order the party to whom a Request to Produce is addressed to produce to the other parties those requested documents in its possession, custody or control (a “Document Production Order”).

A Document Production Order will direct that a party must do one or more of the following things:

1. produce documents or classes of documents specified in the order;
2. carry out a search to the extent stated in the order;
3. produce any documents located as a result of that search;
4. identify documents or classes of documents which were, but are no longer, in the party's possession, custody and control and explain, to the best of the party's knowledge and belief, what has happened to them.

The party from whom a Document Production Order is sought should provide to the applicant and to the Court information as to the factors listed in Rule 28.21 and his document retention policy, to the extent such information is relevant to the application and has not already been provided. At the hearing of an application for a Document Production Order, the Court may take into account the factors listed in Rule 28.21 as well as the width of the request and the conduct of the parties.

If the propriety of an objection can only be determined by review of the document, the Judge hearing the objection may refer the objection to another Judge to review any such document and determine the objection. To the extent that the objection is upheld by the other Judge, the Court may determine that the other Judge will not disclose to the other parties the contents of the document reviewed and will take no further part in the case, either for the purpose of the hearing of applications or as the Judge at trial, unless the parties agree otherwise.

Compliance with a Document Production Order must be verified by a Document Production Statement in the form set out in Schedule B to this Part.

A Document Production Statement is a statement made by a party:

1. setting out the extent of the search that has been made to locate documents which he is required to produce;
2. certifying that he understands the duty to search for and produce documents ; and
3. certifying that to the best of his knowledge he has carried out that duty.

Where the party making the Document Production Statement is a company, firm, association or other organisation, the statement must also:

1. identify the person making the statement; and

2. explain why he is considered an appropriate person to make the statement.

3. The parties' obligation to produce documents in response to a Document Production Request or pursuant to a Document Production Order is a continuing one. Where a party subsequently comes into possession of further documents falling within the scope of such a request or order, the party must notify the requesting party of that fact and either produce the document or object to its production in accordance with RDC 28.26.

4. This rule shall not apply where the party has previously objected to production on grounds which apply to the new document and such objection has not been challenged by the other parties or has been upheld by the Court.

Production of documents in stages

The parties may agree in writing, or the Court may direct, that production of documents shall take place in stages.

Production of documents before proceedings start

An application for production of documents before proceedings have started under these Rules must be made in accordance with Part 8 and supported by evidence.

The Court may only make an order where:

1. the respondent is likely to be a party to subsequent proceedings;
2. the applicant is also likely to be a party to those proceedings;
3. if proceedings had started, the Court would make a Document Production Order directing the production of the documents or classes of documents of which the applicant seeks production; and
4. production before proceedings have started is desirable in order to:
   1. dispose fairly of the anticipated proceedings;
   2. assist the dispute to be resolved without proceedings; or
   3. save costs.

An order under Rule 28.48 must:

1. specify the documents or the classes of documents which the respondent must produce; and
2. require him, when producing the documents, to specify any of those documents:
   1. which are no longer in his control; or
   2. in respect of which he claims a right or duty to withhold production.

Such an order may:

1. require the respondent to indicate what has happened to any documents which are no longer in his control; and
2. specify the time and place for production.

Orders for production of documents against a person not a party

An application for production of documents by a person who is not a party to the proceedings must under these Rules be supported by evidence.

The Court may make an order under this rule only where:

1. the documents of which production is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
2. production is necessary in order to dispose fairly of the claim or to save costs.

An order under Rule 28.51 must:

1. specify the documents or the classes of documents which the respondent must produce; and
2. require the respondent, when producing the documents, to specify any of the documents which the Court has ordered should be produced:
   1. which are no longer in his control; or
   2. in respect of which he claims a right or duty to withhold production.

Such an order may:

1. require the respondent to indicate what has happened to any documents which are no longer in his control; and
2. specify the time and place for production.

Rules not to limit other powers of the Court to order production of documents

Rules 28.47 to 28.54 do not limit any other power which the Court may have to order:

1. production of documents before proceedings have started; and
2. production of documents against a person who is not a party to proceedings.

Request to produce documents by the Court on its own initiative

The Court may at any time request a party to produce to the Court and to the other parties any documents that it considers to be relevant and material to the outcome of the case.

A party may object to such a request based on any of the reasons set out in Rule 28.28.

If a party raises such an objection, the Court shall decide whether to order the production of such documents based upon the considerations set out in Rule 28.28 and, if the Court considers it appropriate, through the use of the procedures set out in Rule 28.41.

Additional documents

Within the time ordered by the Court, the parties may produce to the other parties any additional documents which they believe have become relevant and material as a consequence of the issues raised in statements of case, documents, witness statements or expert reports submitted or produced by another party or in other submissions of the parties.

Consequence of failure to produce documents

A party may not rely on any document which he fails to produce unless the Court gives permission.

If a party fails without satisfactory explanation to produce any document requested in a Request to Produce to which he has not objected in due time or fails to produce any document ordered to be produced by the Court, the Court may infer that such document would be adverse to the interests of that party.

False Document Production Statements

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false Document Production Statement, without an honest belief in its truth.

Proceedings under Rule 28.62 may be brought only with the permission of the Court.

Subsequent use of produced documents

A party to whom a document has been produced may use the document only for the purpose of the proceedings in which it has been produced, except where:

1. the document has been read to or by the Court, or referred to, at a hearing which has been held in public;
2. the Court gives permission; or
3. the party who produced the document and the person to whom the document belongs agree.

The Court may make an order restricting or prohibiting the use of a document which has been produced, even where the document has been read to or by the Court, or referred to, at a hearing which has been held in public.

An application for such an order may be made:

1. by a party; or
2. by any person to whom the document belongs.

Restriction on use of a privileged document inspection of which has been inadvertently allowed

Where a party inadvertently allows a privileged document to be inspected, the party who has inspected the document may use it or its contents only with the permission of the Court.

Schedule A to Part 28 - Document Production Schedule

[1] [Documents sought] [Reasons for request] [Document not in requesting party’s control and reasons] [Document in responding party’s control and reasons] [Reason for Objection]

Schedule B to Part 28 - Document Production Statement

I, the above named claimant [or defendant] [if the party making production is a company, firm or other organisation, identify here the person making the Document Production Statement and explain why he is the appropriate person to make it] state that I have carried out a reasonable search to locate all the documents which I am required to produce under the order made by the Court on day of .

[explain what was searched and extent of search]

I did not search:

(1) for documents predating ………,

(2) for documents located elsewhere than ………,

(3) for documents in categories other than ………,

For electronic documents

I carried out a search for electronic documents contained on or created by the following:

[explain what was searched and extent of search]

I did not search for the following:

(1) documents created before………,

(2) documents contained on or created by the Claimant’s/Defendant’s PCs/portable data storage media/databases/servers/back-up tapes/off-site storage/mobile phones/laptops/notebooks/handheld devices/PDA devices (delete as appropriate),

(3) documents contained on or created by the Claimant’s/Defendant’s mail files/document files/calendar files/spreadsheet files/graphic and presentation files/web-based applications (delete as appropriate),

(4) documents other than by reference to the following keyword(s)/concepts……… (delete if your search was not confined to specific keywords or concepts).

I certify that I understand the duty to produce documents and to the best of my knowledge I have carried out that duty. I certify that the list above is a complete list of all documents which are or have been in my control and which I am obliged under the said order to produce.

Signed and dated this ___

Part 29 — Evidence

I - Evidence in general

This Part sets out how evidence is to be given and facts are to be proved.

Evidence at a hearing other than the trial should normally be given by witness statement. A witness statement is a written statement signed by a person which contains the evidence that person would have otherwise submitted orally.

A witness may give evidence by affidavit if he wishes to do so.

Statements of case and application notices may also be used as evidence provided that their contents have been verified by a statement of truth.

Affidavits must be used as evidence in the following instances:

1. where sworn evidence is required by an enactment, Rule, order or Practice Direction;
2. in any application for a search order, a freezing order, or an order requiring an occupier to permit another to enter his land; and
3. in any application for an order against anyone for alleged contempt of court.

If a party believes that sworn evidence is required by a court in another jurisdiction for any purpose connected with the proceedings, he may apply to the Court for a direction that evidence shall be given only by affidavit in any pre-trial applications.

The Court may give a direction that evidence shall be given by affidavit instead of, or in addition to, a witness statement or statement of case:

1. on its own initiative; or
2. after any party has applied to the Court for such a direction.

An affidavit, where referred to in these Rules or a Practice Direction, also means an affirmation unless the context requires otherwise.

Power of Court to control evidence

The Court may control the evidence by giving directions as to:

1. the issues on which it requires evidence;
2. the nature of the evidence which it requires to decide those issues; and
3. the way in which the evidence is to be placed before the Court.

The Court may use its power under Rule 29.9 to exclude evidence that would otherwise be admissible.

The Court may limit cross-examination.

Evidence of witnesses — General rule

The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved:

1. at trial, by their oral evidence given in public; and
2. at any other hearing, by their evidence in writing.

This is subject:

1. to any provision to the contrary contained in these Rules or elsewhere; or
2. to any order of the Court.

Evidence by video link or other means

The Court may allow a witness to give evidence through a video link or by other means.

Defects in affidavits, witness statements and exhibits

Where:

1. an affidavit;
2. a witness statement; or
3. an exhibit to either an affidavit or a witness statement;

does not comply with this Part in relation to its form, the Court may refuse to admit it as evidence and may refuse to allow the costs arising from its preparation.

Permission to file a defective affidavit or witness statement or to use a defective exhibit must be obtained from a Judge.

II - Witness statements

Preparation and form of witness statements

A witness statement must comply with the requirements set out in this section of this Part.

The following points are emphasised:

1. the function of a witness statement is to set out in writing the evidence in chief of the witness; as far as possible, therefore, the statement should be in the witness's own words;
2. it should be as concise as the circumstances of the case allow without omitting any significant matters;
3. it should not contain lengthy quotations from documents;
4. it should not engage in argument;
5. it must indicate which of the statements made in it are made from the witness's own knowledge and which are made on information or belief, giving the source for any statement made on information or belief; and
6. it must contain a statement by the witness that he believes the matters stated in it are true; proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a witness statement without an honest belief in its truth.

It is improper to put pressure of any kind on a witness to give anything other than his own account of the matters with which his statement deals. It is also improper to serve a witness statement which is known to be false or which it is known the maker does not in all respects actually believe to be true.

Fluency of witnesses

If a witness is not sufficiently fluent in English to give his evidence in English, the witness statement should be in the witness's own language and a translation provided.

If a witness is not fluent in English but can make himself understood in broken English and can understand written English, the statement need not be in his own words provided that these matters are indicated in the statement itself. It must however be written so as to express as accurately as possible the substance of his evidence.

Heading

The witness statement should be headed with the title of the proceedings where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:

At the top right hand corner of the first page (and on the backsheet) there should be clearly written:

1. the party on whose behalf it is made;
2. the initials and surname of the witness;
3. the number of the statement in relation to that witness;
4. the identifying initials and number of each exhibit referred to; and
5. the date the statement was made.

Body of witness statement

The witness statement must, if practicable, be in the intended witness's own words, the statement should be expressed in the first person and should also state:

1. the full name of the witness;
2. his place of residence or, if he is making the statement in his professional; business or other occupational capacity, the address at which he works, the position he holds and the name of his firm or employer;
3. his occupation, or if he has none, his description; and
4. the fact that he is a party to the proceedings or is the employee of such a party if it be the case.

A witness statement must indicate:

1. which of the statements in it are made from the witness's own knowledge and which are matters of information or belief; and
2. the source for any matters of information or belief.

An exhibit used in conjunction with a witness statement should be verified and identified by the witness and remain separate from the witness statement.

Where a witness refers to an exhibit or exhibits, he should state “I refer to the (description of exhibit) marked ‘…’”.

The provisions of Rules 29.85 to 29.98 (exhibits) apply similarly to witness statements as they do to affidavits.

Where a witness makes more than one witness statement to which there are exhibits, in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each witness statement.

Format of witness statement

A witness statement should:

1. be fully legible and should normally be typed on one side of the paper only;
2. where possible, be bound securely in a manner which would not hamper filing , or otherwise each page should be endorsed with the case number and should bear the initials of the witness;
3. have the pages numbered consecutively as a separate statement (or as one of several statements contained in a file);
4. be divided into numbered paragraphs;
5. have all numbers, including dates, expressed in figures; and
6. give the reference to any document or documents mentioned either in the margin or in bold text in the body of the statement.

It is usually convenient for a witness statement to follow the chronological sequence of the events or matters dealt with, each paragraph of a witness statement should as far as possible be confined to a distinct portion of the subject.

Statement of truth

A witness statement is the equivalent of the oral evidence which that witness would, if called, give in evidence; it must include a statement by the intended witness that he believes the facts in it are true.

To verify a witness statement the statement of truth is as follows:

“I believe that the facts stated in this witness statement are true”.

Attention is drawn to Section VI of this Part which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.

Alterations to witness statements

Any alteration to a witness statement must be initialled by the person making the statement or by the authorised person where appropriate.

A witness statement which contains an alteration that has not been initialled may be used in evidence only with the permission of the Court.

Filing of witness statements

If the Court directs that a witness statement is to be filed, it must be filed in the Registry.

Where the Court has directed that a witness statement in a language other than English is to be filed:

1. the party wishing to rely on it must:
   1. have it translated; and
   2. file the witness statement in its original language with the Court; and
2. the translator must make and file with the Court an affidavit verifying the translation and exhibiting both the translation and a copy of the witness statement in its original language.

Requirement to serve witness statements for use at trial

The Court will order a party to serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issues of fact to be decided at the trial.

The Court may give directions as to:

1. the order in which witness statements are to be served; and
2. whether or not the witness statements are to be filed.

Use at trial of witness statements which have been served

If:

1. a party has served a witness statement; and
2. he wishes to rely at trial on the evidence of the witness who made the statement;

he must call the witness to give oral evidence unless the Court orders otherwise or he puts the statement in as hearsay evidence.

Where a witness is called to give oral evidence under Rule 29.41, his witness statement shall stand as his evidence in chief unless the Court orders otherwise.

In an appropriate case the trial Judge may direct that the whole or any part of a witness's evidence in chief is to be given orally. Any application for such an order should be made at the beginning of the trial.

A witness giving oral evidence at trial may with the permission of the Court:

1. amplify his witness statement; and
2. give evidence in relation to new matters which have arisen since the witness statement was served on the other parties.

The Court will give permission under Rule 29.44 only if it considers that there is good reason not to confine the evidence of the witness to the contents of his witness statement.

A supplemental witness statement should normally be served where the witness proposes materially to add to, alter, correct or retract from what is in his original statement. Permission will be required for the service of a supplemental statement.

A party who has decided not to call to give oral evidence at trial a witness whose statement has been served must give prompt notice of this decision to all other parties. He must at the same time state whether he proposes to put the statement in as hearsay evidence.

If a party who has served a witness statement does not:

1. call the witness to give evidence at trial; or
2. put the witness statement in as hearsay evidence;

any other party may put the witness statement in as hearsay evidence.

Cross-examination on a witness statement

Where a witness is called to give evidence at trial, he may be cross-examined on his witness statement, whether or not the statement or any part of it was referred to during the witness's evidence in chief.

Witness summaries

A party who:

1. is required to serve a witness statement for use at trial; but
2. is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead.

A witness summary is a summary of:

1. the evidence, if known, which would otherwise be included in a witness statement; or
2. if the evidence is not known, the matters about which the party serving the witness summary proposes to question the witness.

Unless the Court orders otherwise, a witness summary must include the name and address of the intended witness.

Unless the Court orders otherwise, a witness summary must be served within the period in which a witness statement would have had to be served.

Where a party serves a witness summary, so far as practicable the provisions of this section of this Part with regard to the form of witness statement and Rules 29.39 and 29.40 (requirement to serve witness statements for use at trial) and 29.44 (amplifying witness statements) shall apply to the summary.

Consequence of failure to serve witness statement or summary

If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the Court, then the witness may not be called to give oral evidence unless the Court gives permission.

Evidence in proceedings other than at trial

Subject to Rule 29.57, the general rule is that evidence at hearings other than the trial is to be by witness statement unless the Court, a Practice Direction or any other enactment requires otherwise.

At hearings other than the trial, a party may, rely on the matters set out in:

1. his statement of case; or
2. his application notice;

if the statement of case or application notice is verified by a statement of truth.

Order for cross-examination

Where, at a hearing other than the trial, evidence is given in writing, any party may apply to the Court for permission to cross-examine the person giving the evidence.

If the Court gives permission under Rule 29.58 but the person in question does not attend as required by the order, his evidence may not be used unless the Court gives permission.

Use of witness statements for other purposes

A witness statement may be used only for the purpose of the proceedings in which it is served unless:

1. the witness gives consent in writing to some other use of it;
2. the Court gives permission for some other use; or
3. the witness statement has been put in evidence at a hearing held in public.

Availability of witness statements for inspection

A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the Court otherwise directs.

Any person may ask for a direction that a witness statement is not open to inspection.

The Court will not make a direction under Rule 29.62 unless it is satisfied that a witness statement should not be open to inspection because of:

1. the interests of justice;
2. the public interest;
3. the nature of any expert evidence in the statement; or
4. the nature of any confidential information in the statement.

The Court may exclude from inspection words or passages in the statement.

Certificate of Court Officer

Where the Court has ordered that a witness statement is not to be open to inspection by the public or that words or passages in the statement are not to be open to inspection, a Court Officer will so certify on the statement and make any deletions directed by the Court under Rule 29.64.

III - Affidavit evidence

Evidence must be given by affidavit instead of or in addition to a witness statement if this is required by the Court, a provision contained in any other Rule, a Practice Direction or any other enactment.

Nothing in these Rules prevents a witness giving evidence by affidavit at a hearing other than the trial if he chooses to do so in a case where Rule 29.66 does not apply, but the party putting forward the affidavit may not recover the additional cost of making it from any other party unless the Court orders otherwise.

Deponent

A deponent is a person who gives evidence by affidavit or affirmation.

Heading

The affidavit should be headed with the title of the proceedings; where the proceedings are between several parties with the same status it is sufficient to identify the parties as follows:

Number:

A.B. (and others) Claimants/Applicants

C.D. (and others) Defendants/Respondents

(as appropriate)

At the top right hand corner of the first page (and on the backsheet) there should be clearly written:

1. the party on whose behalf it is made;
2. the initials and surname of the deponent;
3. the number of the affidavit in relation to that deponent;
4. the identifying initials and number of each exhibit referred to; and
5. the date sworn.

Body of affidavit

The affidavit must, if practicable, be in the deponent's own words, the affidavit should be expressed in the first person and the deponent should:

1. Commence ‘I (full name) of (address) state on oath……’;
2. if giving evidence in his professional, business or other occupational capacity, give the address at which he works in (1) above, the position he holds and the name of his firm or employer;
3. give his occupation or, if he has none, his description; and
4. state if he is a party to the proceedings or employed by a party to the proceedings, if it be the case.

An affidavit must indicate:

1. which of the statements in it are made from the deponent's own knowledge and which are matters of information or belief; and
2. the source for any matters of information or belief.

Where a deponent:

1. refers to an exhibit or exhibits, he should state ‘there is now shown to me marked ‘…’ the (description of exhibit)’, and
2. makes more than one affidavit (to which there are exhibits) in the same proceedings, the numbering of the exhibits should run consecutively throughout and not start again with each affidavit.

Jurat

The jurat of an affidavit is a statement set out at the end of the document which authenticates the affidavit. The general form of jurat is set out in the Schedule to this Part.

It must:

1. be signed by all deponents;
2. be completed and signed by the person before whom the affidavit was sworn whose name and qualification must be printed beneath his signature;
3. contain the full address of the person before whom the affidavit was sworn; and
4. follow immediately on from the text and not be put on a separate page.

Format of Affidavits

An affidavit should:

1. be produced on A4 paper;
2. be fully legible and should normally be typed on one side of the paper only;
3. where possible, be bound securely in a manner which would not hamper filing , or otherwise each page should be endorsed with the case number and should bear the initials of the deponent and of the person before whom it was sworn;
4. have the pages numbered consecutively as a separate document (or as one of several documents contained in a file);
5. be divided into numbered paragraphs;
6. have all numbers, including dates, expressed in figures; and
7. give the reference to any document or documents mentioned either in the margin or in bold text in the body of the affidavit.

It is usually convenient for an affidavit to follow the chronological sequence of events or matters dealt with; each paragraph of an affidavit should as far as possible be confined to a distinct portion of the subject.

Inability of deponent to read or sign affidavit

Where an affidavit is sworn by a person who is unable to read or sign it, the person before whom the affidavit is sworn must certify in the jurat that:

1. he read the affidavit to the deponent;
2. the deponent appeared to understand it; and
3. the deponent signed or made his mark in his presence.

If that certificate is not included in the jurat, the affidavit may not be used in evidence unless the Court is satisfied that it was read to the deponent and that he appeared to understand it. Two versions of the form of jurat with the certificate are set out in the Schedule to this Part.

Alterations to affidavits

Any alteration to an affidavit must be initialled by both the deponent and the person before whom the affidavit was sworn.

An affidavit which contains an alteration that has not been initialled may be filed or used in evidence only with the permission of the Court.

Who may administer oaths and take affidavits

Only the following may administer oaths and take affidavits:

1. a Judge or the Registrar;
2. a person registered in the DIFC Court's Register of Legal Practitioners;
3. any person authorised to administer oaths in the UAE; or
4. any other person authorised to administer an oath in the jurisdiction in which the affidavit is sworn.

Filing of affidavits

If the Court directs that an affidavit is to be filed, it must be filed in the Registry.

Where an affidavit is in a language other than English:

1. the party wishing to rely on it:
   1. must have it translated; and
   2. must file the affidavit in its original language with the Court; and
2. the translator must make and file with the Court an affidavit verifying the translation and exhibiting both the translation and a copy of the affidavit in its original language.

Exhibits

Manner of Exhibiting Documents

A document used in conjunction with an affidavit should be:

1. produced to and verified by the deponent, and remain separate from the affidavit; and
2. identified by a declaration of the person before whom the affidavit was sworn.

The declaration should be headed with the name of the proceedings in the same way as the affidavit.

The first page of each exhibit should be marked:

1. as in Rule 29.70 above; and
2. with the exhibit mark referred to in the affidavit.

Letters

Copies of individual letters should be collected together and exhibited in a bundle or bundles. They should be arranged in chronological order with the earliest at the top, and firmly secured.

When a bundle of correspondence is exhibited, the exhibit should have a front page attached stating that the bundle consists of original letters and copies. They should be arranged and secured as above and numbered consecutively.

Other documents

Photocopies instead of original documents may be exhibited provided the originals are made available for inspection by the other parties before the hearing and by the Judge at the hearing.

Court documents must not be exhibited (official copies of such documents prove themselves).

Where an exhibit contains more than one document, a front page should be attached setting out a list of the documents contained in the exhibit; the list should contain the dates of the documents.

Exhibits Other Than Documents

Items other than documents should be clearly marked with an exhibit number or letter in such a manner that the mark cannot become detached from the exhibit.

Small items may be placed in a container and the container appropriately marked.

General Provisions

Where an exhibit contains more than one document:

1. the bundle should not be stapled but should be securely fastened in a way that does not hinder the reading of the documents; and
2. the pages should be numbered consecutively at bottom centre.

Every page of an exhibit should be clearly legible; typed copies of illegible documents should be included, paginated with ‘a’ numbers.

Where affidavits and exhibits have become numerous, they should be put into separate bundles and the pages numbered consecutively throughout.

Where on account of their bulk the service of exhibits or copies of exhibits on the other parties would be difficult or impracticable, the directions of the Court should be sought as to arrangements for bringing the exhibits to the attention of the other parties and as to their custody pending trial.

Affirmations

All provisions in these Rules relating to affidavits apply to affirmations with the following exceptions:

1. the deponent should commence ‘I (name) of (address) do solemnly and sincerely affirm ……’, and
2. in the jurat the word ‘sworn’ is replaced by the word ‘affirmed’.

Affidavit made outside the DIFC

A person may make an affidavit outside the DIFC in accordance with:

1. this Part; or
2. the law of the place where he makes the affidavit.

IV - Hearsay evidence

Introductory

In this Part:

1. ‘hearsay’ means a statement made, otherwise than by a person while giving oral evidence in proceedings, which is tendered as evidence of the matters stated; and
2. references to hearsay include hearsay of whatever degree.

Notice of intention to rely on hearsay evidence

Where a party intends to rely on hearsay evidence at trial and either:

1. that evidence is to be given by a witness giving oral evidence; or
2. that evidence is contained in a witness statement of a person who is not being called to give oral evidence;

that party will be deemed to give notice of such an intention by serving a witness statement on the other parties in accordance with the Court's order.

Where Rule 29.102(2) applies, the party intending to rely on the hearsay evidence must, when he serves the witness statement:

1. inform the other parties that the witness is not being called to give oral evidence; and
2. give the reason why the witness will not be called.

In all other cases where a party intends to rely on hearsay evidence at trial, that party must serve a notice on the other parties which:

1. identifies the hearsay evidence;
2. states that the party serving the notice proposes to rely on the hearsay evidence at trial; and
3. gives the reason why the witness will not be called.

The party proposing to rely on the hearsay evidence must:

1. serve the notice no later than the latest date for serving witness statements; and
2. if the hearsay evidence is to be in a document, supply a copy to any party who requests him to do so.

Circumstances in which notice of intention to rely on hearsay evidence is not required

The duty to give notice of intention to rely on hearsay evidence does not apply:

1. to evidence at hearings other than trials;
2. to an affidavit or witness statement which is to be used at trial but which does not contain hearsay evidence; or
3. where the requirement is excluded by these Rules.

Power to call witness for cross-examination on hearsay evidence

Where a party:

1. proposes to rely on hearsay evidence; and
2. does not propose to call the person who made the original statement to give oral evidence;

the Court may, on the application of any other party, permit that party to call the maker of the statement to be cross-examined on the contents of the statement.

An application for permission to cross-examine under this rule must be made not more than 14 days after the day on which a notice of intention to rely on the hearsay evidence was served on the applicant.

Credibility

Where a party:

1. proposes to rely on hearsay evidence; but
2. does not propose to call the person who made the original statement to give oral evidence; and
3. another party wishes to call evidence to attack the credibility of the person who made the statement;

the party who so wishes must give notice of his intention to the party who proposes to give the hearsay statement in evidence.

A party must give notice under Rule 29.109 not more than 14 days after the day on which a hearsay notice relating to the hearsay evidence was served on him.

V - Miscellaneous rules about evidence

Notice to admit facts

A party may serve notice on another party requiring him to admit the facts, or the part of the case of the serving party, specified in the notice.

A notice to admit facts must be served no later than 21 days before the trial.

Where the other party makes any admission in response to the notice, the admission may be used against him only:

1. in the proceedings in which the notice to admit is served; and
2. by the party who served the notice.

The Court may allow a party to amend or withdraw any admission made by him on such terms as it thinks just.

Notice to admit or produce documents

A party shall be deemed to admit the authenticity of a document produced to him under Part 28 (production of documents) unless he serves notice that he wishes the document to be proved at trial.

A notice to prove a document must be served:

1. by the latest date for serving witness statements; or
2. within 7 days of production of the document, whichever is later.

Notarial acts and instruments

A notarial act or instrument may be received in evidence without further proof as duly authenticated in accordance with the requirements of law unless the contrary is proved.

Statements of case

A statement of case may be used as evidence in an interim application provided it is verified by a statement of truth.

To verify a statement of case the statement of truth should be set out as follows:

“[I believe][the (party on whose behalf the statement of case is being signed) believes] that the facts stated in the statement of case are true”.

Attention is drawn to Section VI of this Part which sets out the consequences of verifying a witness statement containing a false statement without an honest belief in its truth.

Agreed bundles for hearings

The Court may give directions requiring the parties to use their best endeavours to agree a bundle or bundles of documents for use at any hearing.

All documents contained in bundles which have been agreed for use at a hearing shall be admissible at that hearing as evidence of their contents, unless:

1. the Court orders otherwise; or
2. a party gives written notice of objection to the admissibility of particular documents.

Use of plans, photographs and models as evidence

Rules 29.124 to 29.130 apply to evidence (such as a plan, photograph or model) which is not:

1. contained in a witness statement, affidavit or expert's report;
2. to be given orally at trial; or
3. evidence of which prior notice must be given under Rules 29.102 to 29.105.

The evidence referred to in Rule 29.123 includes documents which may be received in evidence without further proof being documents shown to form part of the records of a business or public authority.

Unless the Court orders otherwise the evidence shall not be receivable at a trial unless the party intending to put it in evidence has given notice to the other parties in accordance with Rules 29.126 to 29.130.

Where the party intends to use the evidence as evidence of any fact then, except where Rule 29.128 applies, he must give notice not later than the latest date for serving witness statements.

He must give notice at least 21 days before the hearing at which he proposes to put in the evidence, if:

1. there are not to be witness statements; or
2. he intends to put in the evidence solely in order to disprove an allegation made in a witness statement.

Where the evidence forms part of expert evidence, he must give notice when the expert's report is served on the other party.

Where the evidence is being produced to the Court for any reason other than as part of factual or expert evidence, he must give notice at least 21 days before the hearing at which he proposes to put in the evidence.

Where a party has given notice that he intends to put in the evidence, he must give every other party an opportunity to inspect it and to agree to its admission without further proof.

Evidence of finding on question of non-DIFC Law

Rules 29.133 to 29.135 set out the procedure which must be followed by a party who intends to put in evidence a finding on a question of non-DIFC law.

“Non-DIFC law” means any law other than—

1. DIFC law or any other law in force in the DIFC;
2. the law of any jurisdiction other than that of the DIFC expressly chosen by any DIFC Law;
3. the laws of a jurisdiction as agreed between all the relevant persons concerned in the matter;
4. the laws of any jurisdiction which appear to the Court to be the one most closely related to the facts of and the persons concerned in the matter; and
5. the laws of England and Wales.

He must give any other party notice of his intention.

He must give the notice:

1. if there are to be witness statements, not later than the latest date for serving them; or
2. otherwise, not less than 21 days before the hearing at which he proposes to put the finding in evidence.

The notice must:

1. specify the question on which the finding was made; and
2. enclose a copy of a document where it is reported or recorded.

Evidence of consent of trustee to Act

A document purporting to contain the written consent of a person to act as trustee and to bear his signature verified by some other person is evidence of such consent.

VI - False statements

Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Proceedings under Rule 29.137 may be brought only with the permission of the Court.

Penalty

Where a party alleges that a statement of truth or a Disclosure Statement is false the party shall refer that allegation to the Court dealing with the claim in which the statement of truth or disclosure statement has been made.

The Court may:

1. exercise any of its powers under these Rules;
2. initiate steps to consider if there is a contempt of court and, where there is, to punish it; and/or
3. refer the matter to the Attorney General of Dubai.

Where a party makes an application to the Court for permission for that party to commence proceedings for contempt of court, it must be supported by written evidence which:

1. identifies the statement said to be false;
2. explains:
   1. how it is false; and
   2. the basis on which it is contended the maker knew it to be false at the time he made it; and
   3. explains why contempt proceedings would be appropriate in the light of the overriding objective in Part 1 of these Rules.

Schedule to Part 29

Part 30 - Witnesses, depositions and evidence for other Courts

I - Witnesses and depositions

Scope of this section

This Section of this Part provides:

1. for the circumstances in which a person may be required to attend Court or a tribunal to give evidence or to produce a document; and
2. for a party to obtain evidence before a hearing to be used at the hearing.

In this Section, reference to a hearing includes a reference to the trial.

Witness summonses

A witness summons is a document issued by the Court requiring a witness to:

1. attend the Court or a tribunal to give evidence; or
2. produce documents to the Court or a tribunal.

A witness summons must be in Form P30/01.

There must be a separate witness summons for each witness.

A witness summons may require a witness to produce documents to the Court or a tribunal either:

1. on the date fixed for a hearing; or
2. on such date as the Court may direct.

The only documents that a summons under Rule 30.3(2) can require a person to produce before a hearing are documents which that person could be required to produce at the hearing.

Issue of a witness summons

A witness summons is issued on the date entered on the summons by the Court.

Two copies of the witness summons should be filed with the Court for sealing, one of which will be retained on the Court file.

A mistake in the name or address of a person named in a witness summons may be corrected if the summons has not been served.

The corrected summons must be re-sealed by the Court and marked ‘Amended and Re-Sealed’.

A party must obtain permission from the Court where he wishes to:

1. have a summons issued less than 7 days before the date of the hearing;
2. have a summons issued for a witness to attend the Court or a tribunal to give evidence or to produce documents on any date except the date fixed for the hearing; or
3. have a summons issued for a witness to attend the Court or tribunal to give evidence or to produce documents at any hearing except the trial.

In Rule 30.12(3) ‘trial’ includes a hearing before a tribunal which is intended to dispose of the matter before it.

The Court may set aside or vary a witness summons issued under this Rule 30.8.

Witness summons in aid of tribunal

The Court may issue a witness summons in aid of a tribunal.

The Court may set aside a witness summons issued under Rule 30.15.

Unless the Court otherwise directs, the applicant must give at least 2 days' notice of the application to the party who issued the witness summons, which will normally be dealt with at a hearing.

In Rule 30.15, ‘tribunal’ means any tribunal that does not have power to issue a witness summons in relation to proceedings before it.

Time for serving a witness summons

The general rule is that a witness summons is binding if it is served at least 7 days before the date on which the witness is required to attend before the Court or tribunal.

The Court may direct that a witness summons shall be binding even though it will be served less than 7 days before the date on which the witness is required to attend before the Court or tribunal.

A witness summons which is:

1. served in accordance with this Rule 30.19 or 30.20; and
2. requires the witness to attend before the Court or a tribunal to give evidence;

is binding until the conclusion of the hearing at which the attendance of the witness is required.

Who is to serve a witness summons

A witness summons is to be served by the Court unless the party on whose behalf it is issued indicates in writing, when he asks the Court to issue the summons, that he wishes to serve it himself.

Where the Court is to serve the witness summons, the party on whose behalf it is issued must deposit, in the Court office, the money to be paid or offered to the witness under Rule 30.24.

Right of witness to travelling expenses and compensation for loss of time

At the time of service of a witness summons the witness must be offered or paid:

1. a sum reasonably sufficient to cover his expenses in travelling to and from the Court; and
2. such sum by way of compensation for loss of time as may be specified in the relevant Practice Direction.

Evidence by deposition

A party may apply for an order for a person to be examined before the hearing takes place.

A person from whom evidence is to be obtained following an order under Rule 30.25 is referred to as a ‘deponent’ and the evidence is referred to as a ‘deposition’.

An order under Rule 30.25 shall be for a deponent to be examined on oath before:

1. a Judge;
2. an examiner of the Court; or
3. such other person as the Court appoints.

The order may require the production of any document which the Court considers is necessary for the purposes of the examination.

The order must state the date, time and place of the examination.

At the time of service of the order the deponent must be offered or paid:

1. a sum reasonably sufficient to cover his expenses in travelling to and from the place of examination; and
2. such sum by way of compensation for loss of time as may be specified in the relevant Practice Direction.

Where the Court makes an order for a deposition to be taken, it may also order the party who obtained the order to serve a witness statement or witness summary in relation to the evidence to be given by the person to be examined.

Conduct of examination

Subject to any directions contained in the order for examination, the examination must be conducted in the same way as if the witness were giving evidence at a trial.

If all the parties are present, the examiner may conduct the examination of a person not named in the order for examination if all the parties and the person to be examined consent.

The examiner may conduct the examination in private if he considers it appropriate to do so.

The examiner must ensure that the evidence given by the witness is recorded in full:

1. In ensuring that the deponent's evidence is recorded in full, the Court or the examiner may permit it to be recorded on audiotape or videotape, but the deposition must always be recorded in writing by him or by a competent shorthand writer or stenographer.
2. If the deposition is not recorded word for word, it must contain, as nearly as may be, the statement of the deponent; the examiner may record word for word any particular questions and answers which appear to him to have special importance.

If a deponent objects to answering any question or where any objection is taken to any question, the examiner must:

1. record in the deposition or a document attached to it:
   1. the question;
   2. the nature of and grounds for the objection; and
   3. any answer given; and
2. give his opinion as to the validity of the objection and must record it in the deposition or a document attached to it.

The Court will decide as to the validity of the objection and any question of costs arising from it.

Documents and exhibits must:

1. have an identifying number or letter marked on them by the examiner; and
2. be preserved by the party or his legal representative who obtained the order for the examination, or as the Court or the examiner may direct.

The examiner may put any question to the deponent as to:

1. the meaning of any of his answers; or
2. any matter arising in the course of the examination.

A deposition must:

1. be signed by the examiner;
2. have any amendments to it initialled by the examiner and the deponent; and
3. be endorsed by the examiner with:
   1. a statement of the time occupied by the examination; and
   2. a record of any refusal by the deponent to sign the deposition and of his reasons for not doing so.

The examiner must send a copy of the deposition:

1. to the person who obtained the order for the examination of the witness; and
2. to the Court.

The party who obtained the order must send each of the other parties a copy of the deposition which he receives from the examiner.

Enforcing attendance of witness

If a person served with an order to attend before an examiner:

1. fails to attend; or
2. refuses to be sworn for the purpose of the examination or to answer any lawful question or produce any document at the examination;

a certificate of his failure or refusal, signed by the examiner, must be filed by the party requiring the deposition. The examiner may include in his certificate any comment as to the conduct of the deponent or of any person attending the examination.

On the certificate being filed, the party requiring the deposition may apply to the Court for an order requiring that person to attend or to be sworn or to answer any question or produce any document, as the case may be.

An application for an order under Rule 30.44 may be made without notice.

The Court will make such order on the application under Rule 30.44 as it thinks fit including an order for the deponent to pay any costs resulting from his failure or refusal.

A deponent who wilfully refuses to obey an order made against him under this Section of this Part may be proceeded against for contempt of court.

Use of deposition at a hearing

A deposition ordered under Rule 30.25 may be given in evidence at a hearing unless the Court orders otherwise.

A party intending to put in evidence a deposition at a hearing must serve notice of his intention to do so on every other party.

He must serve the notice at least 21 days before the day fixed for the hearing.

The Court may require a deponent to attend the hearing and give evidence orally.

Where a deposition is given in evidence at trial, it shall be treated as if it were a witness statement for the purposes of Rule 29.61 (availability of witness statements for inspection).

Restrictions on subsequent use of deposition taken for the purpose of any hearing except the trial

Where the Court orders a party to be examined about his or any other assets for the purpose of any hearing except the trial, the deposition may be used only for the purpose of the proceedings in which the order was made.

However, it may be used for some other purpose:

1. by the party who was examined;
2. if the party who was examined agrees; or
3. if the Court gives permission.

Where a party wishes to take a deposition from a person who is out of the DIFC, they should make an application by application notice in accordance with Part 23, accompanied by supporting evidence. The Registry will proceed to give directions as to the requisite procedure to be followed, depending on the jurisdiction in which the taking of evidence is being sought. Parties are put on notice that the taking of evidence abroad may not be feasible in all jurisdictions.

Fees and expenses of examiner of the Court

An examiner of the Court may charge a fee for the examination.

He need not send the deposition to the Court unless the fee is paid.

The examiner's fees and expenses must be paid by the party who obtained the order for examination.

If the fees and expenses due to an examiner are not paid within a reasonable time, he may report that fact to the Court.

The Court may order the party who obtained the order for examination to deposit in the Court office a specified sum in respect of the examiner's fees and, where it does so, the examiner will not be asked to act until the sum has been deposited.

An order under this Rule 30.60 does not affect any decision as to the party who is ultimately to bear the costs of the examination.

Examiners of the Court

The Chief Justice shall appoint persons to be examiners of the Court.

The persons appointed shall be practitioners with rights of audience before the Court who have been practising for a period of not less than three years.

The Chief Justice may revoke an appointment at any time.

II - Evidence for other courts

Scope

Where an application is made to the Court for an order for evidence to be obtained in the DIFC and the Court is satisfied:

1. that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction in:
   1. Dubai; or
   2. in any other part of the UAE;
   3. or in a country or territory outside the UAE; and
2. that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated;

the Court shall have the powers conferred on it by the following provisions of this Section of this Part.

Power of the Court to give effect to application for assistance

The Court shall have the power, on an application under Rule 30.65, by order to make such provision for obtaining evidence in the DIFC as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the Court may consider appropriate for that purpose.

Without prejudice to the generality of Rule 30.66 but subject to the provisions of this Rule, an order under Rule 30.66 may, in particular, make provision:

1. for the examination of witnesses, either orally or in writing;
2. for the production of documents;
3. for the inspection, photographing, preservation, custody or detention of any property;
4. for the taking of samples of any property and the carrying out of any experiments on or with any property;
5. for the medical examination of any person; and/or
6. without prejudice to sub-paragraph (5) above, for the taking and testing of samples of blood from any person.

An order under Rule 30.66 shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the Court (whether or not proceedings of the same description as those to which the application for the order relates); but this Rule shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

An order under Rule 30.66 shall not require a person:

1. to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or
2. to produce any documents other than particular documents specified in the order as being documents appearing to the Court making the order to be, or likely to be, in his possession, custody or power.

A person who, by virtue of an order under Rule 30.66, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in proceedings before the Court.

Privilege of witnesses

A person shall not be compelled by virtue of an order under Rule 30.66 to give any evidence which he could not be compelled to give:

1. in civil proceedings in the DIFC; or
2. subject to Rule 30.72, in civil proceedings in the country or territory in which the requesting court exercises jurisdiction.

Rule 30.71(2) shall not apply unless the claim of the person in question to be exempt from giving the evidence is either:

1. supported by a statement contained in the request (whether it is so supported unconditionally or subject to conditions that are fulfilled); or
2. conceded by the applicant for the order;

and where such a claim made by any person is not supported or conceded as aforesaid he may (subject to the other provisions of this Section of this Part) be required to give the evidence to which the claim relates but that evidence shall not be transmitted to the requesting court if that court, on the matter being referred to it, upholds the claim.

Without prejudice to 30.71, a person shall not be compelled by virtue of an order under Rule 30.66 to give any evidence if his doing so would be prejudicial to the security of the DIFC, Dubai or UAE; and a certificate signed by or on behalf of a responsible authority to the effect that it would be so prejudicial for that person to do so shall be conclusive evidence of that fact.

In this Section of this Part references to giving evidence include references to answering any question and to producing any document and the reference in Rule 30.72 to the transmission of evidence given by a person shall be construed accordingly.

Application for order

An application for an order under Rule 30.66 for evidence to be obtained:

1. must be:
   1. supported by written evidence. The written evidence supporting an application must include or exhibit:
      1. a statement of the issues relevant to the proceedings;
      2. a list of questions or the subject matter of questions to be put to the proposed deponent;
      3. a draft order;
      4. a translation of the documents in (i) and (ii) into English, if necessary; and
   2. accompanied by the request as a result of which the application is made, and where appropriate, a translation of the request into English; and
2. may be made without notice.

Service of the order

The order for the deponent to attend and be examined together with the evidence upon which the order was made must be served on the deponent.

Attention is drawn to the provisions of Rule 23.94 (application to vary or discharge an order made without notice).

Examination

The Court may order an examination to be taken before:

1. any fit and proper person nominated by the person applying for the order;
2. an examiner of the Court; or
3. any other person whom the Court considers suitable.

Unless the Court orders otherwise:

1. the examination will be taken as provided by Rules 30.32 to 30.42; and
2. Rules 30.43 to 30.47 apply.

The Court may make an order under Rule 30.60 for payment of the fees and expenses of the examination.

Dealing with deposition

The examiner must send the deposition of the witness to the Registrar unless the Court orders otherwise.

The Registrar will:

1. give a certificate sealed with the seal of the Court for use out of the DIFC identifying the following documents:
   1. the request;
   2. the order of the Court for examination; and
   3. the deposition of the witness; and
2. send the certificate and the documents referred to in sub-paragraph (1) to the requesting court.

Claim to privilege

Rules 30.84 to 30.89 apply where:

1. a witness claims to be exempt from giving evidence on the ground specified in Rule 30.79(2); and
2. that claim is not supported or conceded as referred to in Rule 30.80.

The examiner may require the witness to give the evidence which he claims to be exempt from giving.

Where the examiner does not require the witness to give that evidence, the Court may order the witness to do so.

An application for an order under Rule 30.85 may be made by the person who obtained the order under Rule 30.66.

Where such evidence is taken:

1. it must be contained in a document separate from the remainder of the deposition;
2. the examiner will send to the Registrar:
   1. the deposition; and
   2. a signed statement setting out the claim to be exempt and the ground on which it was made.

On receipt of the statement referred to Rule 30.87(2)(b), the Registrar will:

1. retain the document containing the part of the witness's evidence to which the claim to be exempt relates; and
2. send the statement and a request to determine that claim to the requesting court or tribunal together with the documents referred to in Rule 30.75.

The Registrar will:

1. if the claim to be exempt is rejected by the requesting court or tribunal, send the document referred to in Rule 30.87(1) to that court or tribunal;
2. if the claim is upheld, send the document to the witness; and
3. in either case, notify the witness and person who obtained the order under Rule 30.66 of the requesting court or tribunal's decision.

Part 31 - Experts and assessors

I - Experts

Introductory

A reference to an ‘expert’ in this Section of this Part is a reference to an expert who has been instructed to give or prepare evidence for the purpose of court proceedings.

Parties are referred to the English “Protocol for the Instruction of Experts to give evidence in civil claims” which is reproduced at Schedule A to this Part as amended from time to time. Not all parts of the Protocol are applicable to litigation before the DIFC Court but the Protocol provides valuable practical guidance both to those who instruct experts and experts themselves as to what they are expected to do in civil and commercial proceedings before the Court. The Court will expect legal practitioners and experts to have read the Protocol.

Experts — Overriding duty to the Court

It is the duty of an expert to help the Court on the matters within his expertise.

This duty overrides any obligation to the person from whom he has received instructions or by whom he is paid.

Expert evidence should be the independent product of the expert uninfluenced by the pressures of litigation.

An expert should assist the Court by providing objective, unbiased opinion on matters within his expertise, and should not assume the role of an advocate.

An expert should consider all material facts, including those which might detract from his opinion.

An expert should make it clear:

1. when a question or issue falls outside his expertise; and
2. when he is not able to reach a definite opinion, for example because he has insufficient information.

If an expert's opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with an indication that the opinion is no more than a provisional one.

In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification must be stated in the report.

If, after producing a report, an expert changes his view on any material matter, such change of view should be communicated to all the parties without delay, and when appropriate to the Court (through the legal representatives of the party instructing the expert or directly to the Court in the case of a Court-appointed expert).

Court's power to restrict expert evidence

Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings.

No party may call an expert or put in evidence an expert's report without the Court's permission.

Any application for permission to call an expert witness or serve an expert's report should normally be made at the Case Management Conference.

When a party applies for permission under Rule 31.13 he must identify:

1. the field in which he wishes to rely on expert evidence; and
2. where practicable the expert in that field on whose evidence he wishes to rely.

If permission is granted under Rule 31.13 shall be in relation only to the expert named or the field identified under Rule 31.15.

In appropriate cases the Court will direct that the reports of expert witnesses be exchanged sequentially rather than simultaneously. This is an issue that the Court will normally wish to consider at the Case Management Conference.

The Court may limit the amount of the expert's fees and expenses that the party who wishes to rely on the expert may recover from any other party.

Orders

Where an order requires an act to be done by an expert, or otherwise affects an expert, the party instructing that expert must serve a copy of the order on the expert instructed by him.

General requirement for expert evidence to be given in a written report

Expert evidence is to be given in a written report unless the Court directs otherwise.

Documents referred to in experts' reports

Unless they have already been provided, copies of any photographs, plans, analyses, measurements, survey reports or other similar documents relied on by an expert witness as well as copies of any unpublished sources must be provided to all parties at the same time as his report.

Rules 28.7 to 28.9 provide that (subject to Rule 31.53) a party may inspect a document mentioned in an expert's report. An expert's report will frequently list all or many of the relevant previous papers (published or unpublished) or books written by the expert or to which the expert has contributed. Requiring inspection of this material may often be unrealistic, and the collating and copying burden could be considerable.

A party wishing to inspect a document in an expert report should (failing agreement) make an application to the Court. The Court will not permit inspection unless it is satisfied that it is necessary for the just disposal of the case and that the document is not reasonably available to the party making the application from an alternative source.

Written questions to experts

A party may put to:

1. an expert instructed by another party; or
2. a Court-appointed expert appointed under Rule 31.29;

written questions about his report.

Written questions under Rule 31.24:

1. may be put once only;
2. must be put within 28 days of service of the expert's report; and
3. must be for the purpose only of clarification of the report;

unless:

1. the Court gives permission; or
2. the party who has instructed the expert agrees.

In cases where questions that are oppressive in number or content are put, or questions are put for any purpose other than clarification of the report, the Court will disallow the questions and make an appropriate order for costs against the party putting them.

An expert's answers to questions put in accordance with Rule 31.24 shall be treated as part of the expert's report.

Where:

1. a party has put a written question to an expert instructed by another party in accordance with Rule 31.24; and
2. the expert does not answer that question;

the Court may make one or both of the following orders in relation to the party who instructed the expert:

1. that the party may not rely on the evidence of that expert; or
2. that the party may not recover the fees and expenses of that expert from any other party.

Court-appointed expert

The Court may appoint one or more independent experts to report to it on specific issues designated by the Court.

Not less than 21 days before making any such appointment, the Court will notify each party in writing of the name of the proposed expert, of the matter in respect of which the opinion of the expert will be sought and of the qualifications of the expert to give that opinion.

The Court shall establish the terms of reference for any Court-appointed expert report. A copy of the final terms of reference shall be sent by the Court to the parties.

The Court-appointed expert shall, before accepting appointment, submit to the Court and to the parties a statement of his independence from the parties and the Court. Within 7 days of receipt of the statement the parties shall inform the Court whether they have any objections to the Court-appointed expert's independence.

Any such objection must be made in writing and filed with the Court and will be taken into account by the Court in deciding whether or not to make the appointment.

The Court-appointed expert may request a party to provide any relevant and material information or to provide access to any relevant documents, goods, samples, property or site for inspection, examination or experiment.

If a party objects to a request made under Rule 31.34 the Court shall, at the request of the Court appointed-expert or the party determine the validity of the objection and may direct the party to comply with the request.

The Court may give directions about any inspection, examination or experiments under Rule 31.34 which the Court appointed-expert wishes to carry out.

The Court appointed-expert shall record in his report any non-compliance by a party with a request under Rule 31.34 or direction by the Court and shall describe its effects on the determination of the specific issue.

A party shall have the right to receive any information and to attend any inspection provided in compliance with a request made under Rule 31.34.

A party may examine any document that the Court-appointed expert has examined and any correspondence between the Court and the Court-appointed expert.

The Court-appointed expert shall report in writing to the Court. The Court-appointed expert shall describe in the report the method, evidence and information used in arriving at the conclusions.

The Court shall send a copy of such expert report to the parties.

Within 28 days of receipt of the Court-appointed expert's report, any party may respond to the report in a submission by the party or through an expert report. The party must serve the submission or expert report on the Court, the Court-appointed expert and the other parties.

Any party may use a Court-appointed expert's report as evidence at the trial.

The Court may direct that the Court-appointed expert attend any hearing. The Court may question the Court-appointed expert, and he may be questioned by the parties.

The Court may give any expert report made by a Court-appointed expert and its conclusions such weight as it considers appropriate.

The Court may order that any party shall be responsible for part or all of the fees and expenses of a Court-appointed expert, including:

1. directing any party to pay an amount into Court; and
2. making payment to the expert on account to be revised on final judgment.

Unless the Court otherwise directs, the parties are jointly and severally liable for the payment of the Court-appointed expert's fees and expenses.

Concurrent Expert Evidence

1. This Rule does not affect the provisions set out in the rest of this Part.
2. If it considers it appropriate in the circumstances of the case, the Court may give directions that expert witnesses engaged by opposing parties be sworn and present their evidence concurrently as a panel.
3. Where the expert witnesses testify as a panel, unless the Court orders otherwise:
   1. each expert may, with the permission of the Court, give a short opening statement not exceeding 10 minutes (or such longer period as may be allowed by the Court) to introduce his report,
   2. each expert will thereafter be subject to questioning by the Court and Counsel, and the Court may direct that the expert witnesses may be questioned in any sequence that the Court thinks fit before or after they have testified as a panel.
   3. The expert witnesses may also be directed by the Court and Counsel to comment on the views of the other expert witnesses on the panel, and may also, with the permission of the Court, make a short concluding statement not exceeding 10 minutes (or such longer period as may be allowed by the Court).
4. The Court may give any other directions as to the giving of concurrent expert evidence as it thinks fit.

Power of Court to direct a party to provide information

Where a party has access to information which is not reasonably available to the other party, the Court may direct the party who has access to the information to:

1. prepare and file a document recording the information; and
2. serve a copy of that document on the other party.

The document served must include sufficient details of all the facts, tests, experiments and assumptions which underlie any part of the information to enable the party on whom it is served to make, or to obtain, a proper interpretation of the information and an assessment of its significance.

Contents of report

An expert's report must comply with the requirements set out in Rules 31.52 to 31.56.

An expert's report should be addressed to the Court and not to the party from whom the expert has received his instructions.

The expert's report must state the substance of all material instructions, whether written or oral, on the basis of which the report was written.

The instructions referred to in Rule 31.53 shall not be privileged against production but the Court will not, in relation to those instructions:

1. order production of any specific document; or
2. permit any questioning in Court, other than by the party who instructed the expert;

unless it is satisfied that there are reasonable grounds to consider the statement of instructions given under Rule 31.53 to be inaccurate or incomplete (or unless the party who gave the instructions consents to it). If the Court is so satisfied, it will allow the cross-examination where it appears to be in the interests of justice to do so.

An expert's report must:

1. give details of the expert's qualifications;
2. give details of any literature or other material which the expert has relied on in making the report;
3. contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
4. state clearly if a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely;
5. make clear which of the facts stated in the report are within the expert's own direct knowledge;
6. say who carried out any examination, measurement, test or experiment which the expert has used for the report, give the qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision;
7. where there is a range of opinion on the matters dealt with in the report:
   1. summarise the range of opinion; and
   2. give reasons for his own opinion;
8. contain a summary of the conclusions reached;
9. if the expert is not able to give his opinion without qualification, state the qualification; and
10. contain a statement that the expert understands his duty to the Court, and has complied and will continue to comply with that duty.

An expert's report must be verified by a statement of truth as well as containing the statements required in Rules 31.55(9) and 31.56(10) above. The form of the statement of truth is as follows:

“I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.”

(Attention is drawn to Section VI of Part 29 which sets out the consequences of verifying a document containing a false statement without an honest belief in its truth).

Use by one party of expert's report produced by another

Where a party has produced an expert's report, any party may use that expert's report as evidence at the trial.

Discussions between experts

The Court will normally direct a meeting or meetings of expert witnesses (including any Court-appointed expert) before trial. Sometimes it may be useful for there to be further meetings during the trial itself. The Court may, at any stage, direct a discussion between experts for the purpose of requiring the experts to:

1. identify and discuss the expert issues in the proceedings; and
2. decide, with the benefit of that discussion, on which expert issues they share or can come to share the same expert opinion and on which expert issues there remains a difference of expert opinion between them (and what that difference is).

The Court may specify the issues which the experts must discuss.

Subject to any directions of the Court, the procedure to be adopted at a meeting of experts is a matter for the experts themselves, not the parties or their legal representatives.

Neither the parties nor their legal representatives should seek to restrict the freedom of experts to identify and acknowledge the expert issues on which they agree at, or following further consideration after, meetings of experts.

The content of the discussion between the experts shall not be referred to at the trial unless the parties agree.

Unless the Court orders otherwise, at or following any meeting, the experts should prepare a joint memorandum for the Court recording:

1. the fact that they have met and discussed the expert issues;
2. the issues on which they agree;
3. the issues on which they disagree; and
4. a brief summary of the reasons for their disagreement.

Where experts reach agreement on an issue during their discussions, the agreement shall not bind the parties unless the parties expressly agree to be bound by the agreement.

Consequence of failure to produce expert's report

A party who fails to produce an expert's report may not use the report at the trial or call the expert to give evidence orally unless the Court gives permission.

Expert's right to ask Court for directions

An expert (including any Court-appointed expert) may file a written request for directions to assist him in carrying out his function as an expert.

An expert must, unless the Court orders otherwise, provide a copy of any proposed request for directions under Rule 31.66:

1. (if he is not a Court-appointed expert) to the party instructing him, at least 7 days before he files the request; and
2. to all other parties, at least 4 days before he files it.

The Court, when it gives directions, may also direct that a party be served with a copy of the directions.

Trial

At trial the evidence of expert witnesses is usually taken as a block, after the evidence of witnesses of fact has been given.

II - Assessors

This Section of this Part applies where the Court appoints one or more persons (an ‘Assessor’) under Article 18 of the Court Law ( Article 18 of DIFC Law No. 10/2004 (opens in a new tab)).

The Assessor shall assist the Court in dealing with a matter in which the Assessor has skill and experience.

Appointment of Assessor

Not less than 21 days before making any such appointment, the Court will notify each party in writing of the name of the proposed Assessor, of the matter in respect of which the assistance of the Assessor will be sought and of the qualifications of the Assessor to give that assistance.

Where any person has been proposed for appointment as an Assessor, objection to him, either personally or in respect of his qualification, may be taken by any party.

Any such objection must be made in writing and filed with the Court within 7 days of receipt of the notification referred to in Rule 31.72 and will be taken into account by the Court in deciding whether or not to make the appointment.

Prior to commencing duties an Assessor shall take an oath or affirmation of office in accordance with these Rules.

An Assessor who has or may have a conflict concerning the subject matter of the proceedings must disclose the matters giving rise to that conflict to the Court and the parties to the proceeding as soon as he becomes aware of the conflict or potential conflict.

For the purposes of this Section of this Part, an Assessor has a conflict of interest in relation to proceedings if the Assessor has any interest, pecuniary or otherwise, that could conflict with the proper performance of the Assessor's functions in relation to the proceedings.

Part to be taken in proceedings by Assessor

An Assessor shall take such part in the proceedings as the Court may direct and in particular the Court may:

1. direct the Assessor to prepare a report for the Court on any matter at issue in the proceedings; and
2. direct the Assessor to attend the whole or any part of the trial to advise the Court on any such matter.

If the Assessor prepares a report for the Court before the trial has begun:

1. the Court will send a copy to each of the parties;
2. the parties to the proceedings shall be given an opportunity to make submissions on the Assessor's report; and
3. the parties may use it at trial.

The Assessor will not give oral evidence or be open to cross-examination or questioning.

The range of topics on which advice might be sought from the Assessor should be canvassed with the parties' legal representatives by, at the latest, the stage of final submissions.

Ordinarily, the questions asked of the Assessor by the Court should not stray outside the range previously discussed with the parties' legal representatives.

The questions ultimately put by the Court, together with the answers given by the Assessor, must be disclosed to the parties' legal representatives before any draft judgment is handed down.

The parties' legal representatives will thereafter be given the opportunity to make submissions to the Court, as to whether the advice given by the Assessor should be followed. Ordinarily, any such submissions should be in writing; but if there is good reason for doing so, an application may be made for an oral hearing. The Court will consider any such submissions before finalising any judgment.

Generally speaking, the interests of proportionality and finality will make it unnecessary to repeat the procedure after the Court and the Assessor have had the opportunity of considering the parties' submissions and any suggested further or revised questions. Accordingly, unless the Court in its discretion thinks it appropriate to disclose them to the parties' legal representatives before the judgment is finalised, any further or revised answers will simply be recorded in the judgment, together with the Court's decision as to whether or not to accept the Assessor's advice and its reasons for doing so.

Remuneration of Assessors

The Registrar shall pay to any Assessor appointed under this Section of this Part a fee as set out in Schedule B to this Part for carrying out his duties and shall reimburse him for any expenses reasonably incurred.

The remuneration to be paid to the Assessor for his services shall be determined by the Court and shall form part of the costs of the proceedings.

The Court may order any party to deposit in the Registry a specified sum in respect of the Assessor's fees and, where it does so, the Assessor will not be asked to act until the sum has been deposited.

Schedule A to Part 31 - Protocol for the Instruction of Experts to give evidence in civil claims

1 - Introduction

Expert witnesses perform a vital role in civil litigation. It is essential that both those who instruct experts and experts themselves are given clear guidance as to what they are expected to do in civil proceedings. The purpose of this Protocol is to provide such guidance. It has been drafted by the Civil Justice Council and reflects the rules and practice directions current [in June 2005], replacing the Code of Guidance on Expert Evidence. The authors of the Protocol wish to acknowledge the valuable assistance they obtained by drawing on earlier documents produced by the Academy of Experts and the Expert Witness Institute, as well as suggestions made by the Clinical Dispute Forum. The Protocol has been approved by the Master of the Rolls.

2 - Aims of Protocol

This Protocol offers guidance to experts and to those instructing them in the interpretation of and compliance with Part 35 of the Civil Procedure Rules (CPR 35) and its associated Practice Direction (PD 35) and to further the objectives of the Civil Procedure Rules in general. It is intended to assist in the interpretation of those provisions in the interests of good practice but it does not replace them. It sets out standards for the use of experts and the conduct of experts and those who instruct them. The existence of this Protocol does not remove the need for experts and those who instruct them to be familiar with CPR35 and PD35.

Experts and those who instruct them should also bear in mind para 1.4 of the Practice Direction on Protocols which contains the following objectives, namely to:

1. encourage the exchange of early and full information about the expert issues involved in a prospective legal claim;
2. enable the parties to avoid or reduce the scope of litigation by agreeing the whole or part of an expert issue before commencement of proceedings; and
3. support the efficient management of proceedings where litigation cannot be avoided.

3 - Application

This Protocol applies to any steps taken for the purpose of civil proceedings by experts or those who instruct them on or after 5th September 2005.

It applies to all experts who are, or who may be, governed by CPR Part 35 and to those who instruct them. Experts are governed by Part 35 if they are or have been instructed to give or prepare evidence for the purpose of civil proceeding in a court in England and Wales (CPR 35.2).

Experts, and those instructing them, should be aware that some cases may be “specialist proceedings” (CPR 49) where there are modifications to the Civil Procedure Rules. Proceedings may also be governed by other Protocols Further, some courts have published their own Guides which supplement the Civil Procedure Rules for proceedings in those courts. They contain provisions affecting expert evidence. Expert witnesses and those instructing them should be familiar with them when they are relevant.

Courts may take into account any failure to comply with this Protocol when making orders in relation to costs, interest, time limits, the stay of proceedings and whether to order a party to pay a sum of money into court.

Limitation

If, as a result of complying with any part of this Protocol, claims would or might be time barred under any provision in the Limitation Act 1980, or any other legislation that imposes a time limit for the bringing an action, claimants may commence proceedings without complying with this Protocol. In such circumstances, claimants who commence proceedings without complying with all, or any part, of this Protocol must apply, giving notice to all other parties, to the court for directions as to the timetable and form of procedure to be adopted, at the same time as they request the court to issue proceedings. The court may consider whether to order a stay of the whole or part of the proceedings pending compliance with this Protocol and may make orders in relation to costs.

4 - Duties of experts

Experts always owe a duty to exercise reasonable skill and care to those instructing them, and to comply with any relevant professional code of ethics. However when they are instructed to give or prepare evidence for the purpose of civil proceedings in England and Wales they have an overriding duty to help the court on matters within their expertise (CPR 35.3). This duty overrides any obligation to the person instructing or paying them. Experts must not serve the exclusive interest of those who retain them.

Experts should be aware of the overriding objective that courts deal with cases justly. This includes dealing with cases proportionately, expeditiously and fairly (CPR 1.1). Experts are under an obligation to assist the court so as to enable them to deal with cases in accordance with the overriding objective. However the overriding objective does not impose on experts any duty to act as mediators between the parties or require them to trespass on the role of the court in deciding facts.

Experts should provide opinions which are independent, regardless of the pressures of litigation. In this context, a useful test of ‘independence’ is that the expert would express the same opinion if given the same instructions by an opposing party. Experts should not take it upon themselves to promote the point of view of the party instructing them or engage in the role of advocates.

Experts should confine their opinions to matters which are material to the disputes between the parties and provide opinions only in relation to matters which lie within their expertise. Experts should indicate without delay where particular questions or issues fall outside their expertise.

Experts should take into account all material facts before them at the time that they give their opinion. Their reports should set out those facts and any literature or any other material on which they have relied in forming their opinions. They should indicate if an opinion is provisional, or qualified, or where they consider that further information is required or if, for any other reason, they are not satisfied that an opinion can be expressed finally and without qualification.

Experts should inform those instructing them without delay of any change in their opinions on any material matter and the reason for it.

Experts should be aware that any failure by them to comply with the Civil Procedure Rules or court orders or any excessive delay for which they are responsible may result in the parties who instructed them being penalised in costs and even, in extreme cases, being debarred from placing the experts' evidence before the court. In Phillips v Symes Peter Smith J held that courts may also make orders for costs (under section 51 of the Supreme Court Act 1981) directly against expert witnesses who by their evidence cause significant expense to be incurred, and do so in flagrant and reckless disregard of their duties to the Court.

5 - Conduct of Experts instructed only to advise

Part 35 only applies where experts are instructed to give opinions which are relied on for the purposes of court proceedings. Advice which the parties do not intend to adduce in litigation is likely to be confidential; the Protocol does not apply in these circumstances .

The same applies where, after the commencement of proceedings, experts are instructed only to advise (e.g. to comment upon a single joint expert's report) and not to give or prepare evidence for use in the proceedings.

However this Protocol does apply if experts who were formerly instructed only to advise are later instructed to give or prepare evidence for the purpose of civil proceedings.

6 - The Need for Experts

Those intending to instruct experts to give or prepare evidence for the purpose of civil proceedings should consider whether expert evidence is appropriate, taking account of the principles set out in CPR Parts 1 and 35, and in particular whether:

1. it is relevant to a matter which is in dispute between the parties.
2. it is reasonably required to resolve the proceedings (CPR 35.1);
3. the expert has expertise relevant to the issue on which an opinion is sought;
4. the expert has the experience, expertise and training appropriate to the value, complexity and importance of the case; and whether
5. these objects can be achieved by the appointment of a single joint expert (see section 17 below).

Although the court's permission is not generally required to instruct an expert, the court's permission is required before experts can be called to give evidence or their evidence can be put in (CPR 35.4).

7 - The appointment of experts

Before experts are formally instructed or the court's permission to appoint named experts is sought, the following should be established:

1. that they have the appropriate expertise and experience;
2. that they are familiar with the general duties of an expert;
3. that they can produce a report, deal with questions and have discussions with other experts within a reasonable time and at a cost proportionate to the matters in issue;
4. a description of the work required;
5. whether they are available to attend the trial, if attendance is required; and
6. there is no potential conflict of interest.

Terms of appointment should be agreed at the outset and should normally include:

1. the capacity in which the expert is to be appointed (e.g. party appointed expert, single joint expert or expert advisor);
2. the services required of the expert (e.g. provision of expert's report, answering questions in writing, attendance at meetings and attendance at court);
3. time for delivery of the report;
4. the basis of the expert's charges (either daily or hourly rates and an estimate of the time likely to be required, or a total fee for the services);
5. travelling expenses and disbursements;
6. cancellation charges;
7. any fees for attending court;
8. time for making the payment; and
9. whether fees are to be paid by a third party.
10. if a party is publicly funded, whether or not the expert's charges will be subject to assessment by a costs officer.

As to the appointment of single joint experts, see section 17 below.

When necessary, arrangements should be made for dealing with questions to experts and discussions between experts, including any directions given by the court, and provision should be made for the cost of this work.

Experts should be informed regularly about deadlines for all matters concerning them. Those instructing experts should promptly send them copies of all court orders and directions which may affect the preparation of their reports or any other matters concerning their obligations.

Conditional and Contingency Fees

Payments contingent upon the nature of the expert evidence given in legal proceedings, or upon the outcome of a case, must not be offered or accepted. To do so would contravene experts' overriding duty to the court and compromise their duty of independence.

Agreement to delay payment of experts' fees until after the conclusion of cases is permissible as long as the amount of the fee does not depend on the outcome of the case.

8 - Instructions

Those instructing experts should ensure that they give clear instructions, including the following:

1. basic information, such as names, addresses, telephone numbers, dates of birth and dates of incidents;
2. the nature and extent of the expertise which is called for;
3. the purpose of requesting the advice or report, a description of the matter(s) to be investigated, the principal known issues and the identity of all parties;
4. the statement(s) of case (if any), those documents which form part of standard disclosure and witness statements which are relevant to the advice or report;
5. where proceedings have not been started, whether proceedings are being contemplated and, if so, whether the expert is asked only for advice;
6. an outline programme, consistent with good case management and the expert's availability, for the completion and delivery of each stage of the expert's work; and
7. where proceedings have been started, the dates of any hearings (including any Case Management Conferences and/or Pre-Trial Reviews), the name of the court, the claim number and the track to which the claim has been allocated.

Experts who do not receive clear instructions should request clarification and may indicate that they are not prepared to act unless and until such clear instructions are received.

As to the instruction of single joint experts, see section 17 below.

9 - Experts' Acceptance of Instructions

Experts should confirm without delay whether or not they accept instructions. They should also inform those instructing them (whether on initial instruction or at any later stage) without delay if:

1. instructions are not acceptable because, for example, they require work that falls outside their expertise, impose unrealistic deadlines, or are insufficiently clear;
2. they consider that instructions are or have become insufficient to complete the work;
3. they become aware that they may not be able to fulfil any of the terms of appointment;
4. the instructions and/or work have, for any reason, placed them in conflict with their duties as an expert; or
5. they are not satisfied that they can comply with any orders that have been made.

Experts must neither express an opinion outside the scope of their field of expertise, nor accept any instructions to do so.

10 - Withdrawal

Where experts' instructions remain incompatible with their duties, whether through incompleteness, a conflict between their duty to the court and their instructions, or for any other substantial and significant reason, they may consider withdrawing from the case. However, experts should not withdraw without first discussing the position fully with those who instruct them and considering carefully whether it would be more appropriate to make a written request for directions from the court. If experts do withdraw, they must give formal written notice to those instructing them.

11 - Experts' Right to ask Court for Directions

Experts may request directions from the court to assist them in carrying out their functions as experts. Experts should normally discuss such matters with those who instruct them before making any such request. Unless the court otherwise orders, any proposed request for directions should be copied to the party instructing the expert at least seven days before filing any request to the court, and to all other parties at least four days before filing it. (CPR 35.14).

Requests to the court for directions should be made by letter, containing —

1. the title of the claim;
2. the claim number of the case;
3. the name of the expert;
4. full details of why directions are sought; and
5. copies of any relevant documentation.

12 - Power of the Court to Direct a Party to Provide Information

If experts consider that those instructing them have not provided information which they require, they may, after discussion with those instructing them and giving notice, write to the court to seek directions (CPR 35.14).

Experts and those who instruct them should also be aware of CPR 35.9. This provides that where one party has access to information which is not readily available to the other party, the court may direct the party who has access to the information to prepare, file and copy to the other party a document recording the information. If experts require such information which has not been disclosed, they should discuss the position with those instructing them without delay, so that a request for the information can be made, and, if not forthcoming, an application can be made to the court. Unless a document appears to be essential, experts should assess the cost and time involved in the production of a document and whether its provision would be proportionate in the context of the case.

13 - Contents of Experts' Reports

The content and extent of experts' reports should be governed by the scope of their instructions and general obligations, the contents of CPR 35 and PD35 and their overriding duty to the court.

In preparing reports, experts should maintain professional objectivity and impartiality at all times.

PD 35, para 2 provides that experts' reports should be addressed to the court and gives detailed directions about the form and content of such reports. All experts and those who instruct them should ensure that they are familiar with these requirements.

Model forms of Experts' Reports are available from bodies such as the Academy of Experts or the Expert Witness Institute.

Experts' reports must contain statements that they understand their duty to the court and have complied and will continue to comply with that duty (PD35 para 2.2(9)). They must also be verified by a statement of truth. The form of the statement of truth is as follows:

“I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion.” This wording is mandatory and must not be modified.

Qualifications

The details of experts' qualifications to be given in reports should be commensurate with the nature and complexity of the case. It may be sufficient merely to state academic and professional qualifications. However, where highly specialized expertise is called for, experts should include the detail of particular training and/or experience that qualifies them to provide that highly specialised evidence.

Tests

Where tests of a scientific or technical nature have been carried out, experts should state:

1. the methodology used; and
2. by whom the tests were undertaken and under whose supervision,

summarizing their respective qualifications and experience.

Reliance on the work of others

Where experts rely in their reports on literature or other material and cite the opinions of others without having verified them, they must give details of those opinions relied on. It is likely to assist the court if the qualifications of the originator(s) are also stated.

Facts

When addressing questions of fact and opinion, experts should keep the two separate and discrete.

Experts must state those facts (whether assumed or otherwise) upon which their opinions are based. They must distinguish clearly between those facts which experts know to be true and those facts which they assume.

Where there are material facts in dispute experts should express separate opinions on each hypothesis put forward. They should not express a view in favour of one or other disputed version of the facts unless, as a result of particular expertise and experience, they consider one set of facts as being improbable or less probable, in which case they may express that view, and should give reasons for holding it.

Range of opinion

If the mandatory summary of the range of opinion is based on published sources, experts should explain those sources and, where appropriate, state the qualifications of the originator(s) of the opinions from which they differ, particularly if such opinions represent a well-established school of thought.

Where there is no available source for the range of opinion, experts may need to express opinions on what they believe to be the range which other experts would arrive at if asked. In those circumstances, experts should make it clear that the range that they summarise is based on their own judgement and explain the basis of that judgement.

Conclusions

A summary of conclusions is mandatory. The summary should be at the end of the report after all the reasoning. There may be cases, however, where the benefit to the court is heightened by placing a short summary at the beginning of the report whilst giving the full conclusions at the end. For example, it can assist with the comprehension of the analysis and with the absorption of the detailed facts if the court is told at the outset of the direction in which the report's logic will flow in cases involving highly complex matters which fall outside the general knowledge of the court.

Basis of report: material instructions

The mandatory statement of the substance of all material instructions should not be incomplete or otherwise tend to mislead. The imperative is transparency. The term “instructions” includes all material which solicitors place in front of experts in order to gain advice. The omission from the statement of ‘off–the–record’ oral instructions is not permitted. Courts may allow cross-examination about the instructions if there are reasonable grounds to consider that the statement may be inaccurate or incomplete.

14 - After receipt of experts' reports

Following the receipt of experts' reports, those instructing them should advise the experts as soon as reasonably practicable whether, and if so when, the report will be disclosed to other parties; and, if so disclosed, the date of actual disclosure.

If experts' reports are to be relied upon, and if experts are to give oral evidence those instructing them should give the experts the opportunity to consider and comment upon other reports within their area of expertise and which deal with relevant issues at the earliest opportunity.

Those instructing experts should keep experts informed of the progress of cases, including amendments to statements of case relevant to experts' opinion.

If those instructing experts become aware of material changes in circumstances or that relevant information within their control was not previously provided to experts, they should without delay instruct experts to review, and if necessary, update the contents of their reports.

15 - Amendment of reports

It may become necessary for experts to amend their reports:

1. as a result of an exchange of questions and answers;
2. following agreements reached at meetings between experts; or
3. where further evidence or documentation is disclosed.

Experts should not be asked to, and should not, amend, expand or alter any parts of reports in a manner which distorts their true opinion, but may be invited to amend or expand reports to ensure accuracy, internal consistency, completeness and relevance to the issues and clarity. Although experts should generally follow the recommendations of solicitors with regard to the form of reports, they should form their own independent views as to the opinions and contents expressed in their reports and exclude any suggestions which do not accord with their views.

Where experts change their opinion following a meeting of experts, a simple signed and dated addendum or memorandum to that effect is generally sufficient. In some cases, however, the benefit to the court of having an amended report may justify the cost of making the amendment.

Where experts significantly alter their opinion, as a result of new evidence or because evidence on which they relied has become unreliable, or for any other reason, they should amend their reports to reflect that fact. Amended reports should include reasons for amendments. In such circumstances those instructing experts should inform other parties as soon as possible of any change of opinion.

When experts intend to amend their reports, they should inform those instructing them without delay and give reasons. They should provide the amended version (or an addendum or memorandum) clearly marked as such as quickly as possible.

1. direct the Assessor to prepare a report for the Court on any matter at issue in the proceedings; and
2. direct the Assessor to attend the whole or any part of the trial to advise the Court on any such matter.

16 - Written Questions to Experts

The procedure for putting written questions to experts (CPR 35.6) is intended to facilitate the clarification of opinions and issues after experts' reports have been served. Experts have a duty to provide answers to questions properly put. Where they fail to do so, the court may impose sanctions against the party instructing the expert, and, if, there is continued non-compliance, debar a party from relying on the report. Experts should copy their answers to those instructing them.

Experts' answers to questions automatically become part of their reports. They are covered by the statement of truth and form part of the expert evidence.

Where experts believe that questions put are not properly directed to the clarification of the report, or are disproportionate, or have been asked out of time, they should discuss the questions with those instructing them and, if appropriate, those asking the questions. Attempts should be made to resolve such problems without the need for an application to the court for directions.

Written requests for directions in relation to questions

If those instructing experts do not apply to the court in respect of questions, but experts still believe that questions are improper or out of time, experts may file written requests with the court for directions to assist in carrying out their functions as experts (CPR 35.14). See Section 11 above.

17 - Single Joint Experts

CPR 35 and PD35 deal extensively with the instruction and use of joint experts by the parties and the powers of the court to order their use (see CPR 35.7 and 35.8, PD35, para 5).

The Civil Procedure Rules encourage the use of joint experts. Wherever possible a joint report should be obtained. Consideration should therefore be given by all parties to the appointment of single joint experts in all cases where a court might direct such an appointment. Single joint experts are the norm in cases allocated to the small claims track and the fast track.

Where, in the early stages of a dispute, examinations, investigations, tests, site inspections, experiments, preparation of photographs, plans or other similar preliminary expert tasks are necessary, consideration should be given to the instruction of a single joint expert, especially where such matters are not, at that stage, expected to be contentious as between the parties. The objective of such an appointment should be to agree or to narrow issues.

Experts who have previously advised a party (whether in the same case or otherwise) should only be proposed as single joint experts if other parties are given all relevant information about the previous involvement.

The appointment of a single joint expert does not prevent parties from instructing their own experts to advise (but the costs of such expert advisers may not be recoverable in the case).

Joint instructions

The parties should try to agree joint instructions to single joint experts, but, in default of agreement, each party may give instructions. In particular, all parties should try to agree what documents should be included with instructions and what assumptions single joint experts should make.

Where the parties fail to agree joint instructions, they should try to agree where the areas of disagreement lie and their instructions should make this clear. If separate instructions are given, they should be copied at the same time to the other instructing parties.

Where experts are instructed by two or more parties, the terms of appointment should, unless the court has directed otherwise, or the parties have agreed otherwise, include:

1. a statement that all the instructing parties are jointly and severally liable to pay the experts' fees and, accordingly, that experts' invoices should be sent simultaneously to all instructing parties or their solicitors (as appropriate); and

2. a statement as to whether any order has been made limiting the amount of experts' fees and expenses (CPR 35.8(4)(a)).

Where instructions have not been received by the expert from one or more of the instructing parties the expert should give notice (normally at least 7 days) of a deadline to all instructing parties for the receipt by the expert of such instructions. Unless the instructions are received within the deadline the expert may begin work. In the event that instructions are received after the deadline but before the signing off of the report the expert should consider whether it is practicable to comply with those instructions without adversely affecting the timetable set for delivery of the report and in such a manner as to comply with the proportionality principle. An expert who decides to issue a report without taking into account instructions received after the deadline should inform the parties who may apply to the court for directions. In either event the report must show clearly that the expert did not receive instructions within the deadline, or, as the case may be, at all.

Conduct of the single joint expert

Single joint experts should keep all instructing parties informed of any material steps that they may be taking by, for example, copying all correspondence to those instructing them.

Single joint experts are Part 35 experts and so have an overriding duty to the court. They are the parties' appointed experts and therefore owe an equal duty to all parties. They should maintain independence, impartiality and transparency at all times.

Single joint experts should not attend any meeting or conference which is not a joint one, unless all the parties have agreed in writing or the court has directed that such a meeting may be held and who is to pay the experts' fees for the meeting.

Single joint experts may request directions from the court — see Section 11 above.

Single joint experts should serve their reports simultaneously on all instructing parties. They should provide a single report even though they may have received instructions which contain areas of conflicting fact or allegation. If conflicting instructions lead to different opinions (for example, because the instructions require experts to make different assumptions of fact), reports may need to contain more than one set of opinions on any issue. It is for the court to determine the facts.

Cross-examination

Single joint experts do not normally give oral evidence at trial but if they do, all parties may cross-examine them. In general written questions (CPR 35.6) should be put to single joint experts before requests are made for them to attend court for the purpose of cross-examination.

18 - Discussions between Experts

The court has powers to direct discussions between experts for the purposes set out in the Rules (CPR 35.12). Parties may also agree that discussions take place between their experts.

Where single joint experts have been instructed but parties have, with the permission of the court, instructed their own additional Part 35 experts, there may, if the court so orders or the parties agree, be discussions between the single joint experts and the additional Part 35 experts. Such discussions should be confined to those matters within the remit of the additional Part 35 experts or as ordered by the court.

The purpose of discussions between experts should be, wherever possible, to:

1. identify and discuss the expert issues in the proceedings;
2. reach agreed opinions on those issues, and, if that is not possible, to narrow the issues in the case;
3. identify those issues on which they agree and disagree and summarise their reasons for disagreement on any issue; and
4. identify what action, if any, may be taken to resolve any of the outstanding issues between the parties.

Arrangements for discussions between experts

Arrangements for discussions between experts should be proportionate to the value of cases. In small claims and fast-track cases there should not normally be meetings between experts. Where discussion is justified in such cases, telephone discussion or an exchange of letters should, in the interests of proportionality, usually suffice. In multi-track cases, discussion may be face to face, but the practicalities or the proportionality principle may require discussions to be by telephone or video conference.

The parties, their lawyers and experts should co-operate to produce the agenda for any discussion between experts, although primary responsibility for preparation of the agenda should normally lie with the parties' solicitors.

The agenda should indicate what matters have been agreed and summarise concisely those which are in issue. It is often helpful for it to include questions to be answered by the experts. If agreement cannot be reached promptly or a party is unrepresented, the court may give directions for the drawing up of the agenda. The agenda should be circulated to experts and those instructing them to allow sufficient time for the experts to prepare for the discussion.

Those instructing experts must not instruct experts to avoid reaching agreement (or to defer doing so) on any matter within the experts' competence. Experts are not permitted to accept such instructions.

The parties' lawyers may only be present at discussions between experts if all the parties agree or the court so orders. If lawyers do attend, they should not normally intervene except to answer questions put to them by the experts or to advise about the law.

The content of discussions between experts should not be referred to at trial unless the parties agree (CPR 35.12(4)). It is good practice for any such agreement to be in writing.

At the conclusion of any discussion between experts, a statement should be prepared setting out:

1. a list of issues that have been agreed, including, in each instance, the basis of agreement;
2. a list of issues that have not been agreed, including, in each instance, the basis of disagreement;
3. a list of any further issues that have arisen that were not included in the original agenda for discussion;
4. a record of further action, if any, to be taken or recommended, including as appropriate the holding of further discussions between experts.

The statement should be agreed and signed by all the parties to the discussion as soon as may be practicable.

Agreements between experts during discussions do not bind the parties unless the parties expressly agree to be bound by the agreement (CPR 35.12(5)). However, in view of the overriding objective, parties should give careful consideration before refusing to be bound by such an agreement and be able to explain their refusal should it become relevant to the issue of costs.

19 - Attendance of Experts at Court

Experts instructed in cases have an obligation to attend court if called upon to do so and accordingly should ensure that those instructing them are always aware of their dates to be avoided and take all reasonable steps to be available.

Those instructing experts should:

1. ascertain the availability of experts before trial dates are fixed;
2. keep experts updated with timetables (including the dates and times experts are to attend) and the location of the court;
3. give consideration, where appropriate, to experts giving evidence using a video-link.
4. inform experts immediately if trial dates are vacated.

Experts should normally attend court without the need for the service of witness summonses, but on occasion they may be served to require attendance (CPR 34). The use of witness summonses does not affect the contractual or other obligations of the parties to pay experts' fees.

Part 32 - Offers to settle

Scope of this Part

This Part contains Rules about:

1. offers to settle; and
2. the consequences where an offer to settle is made in accordance with Rule 32.4.

Nothing in this Part prevents a party making an offer to settle in whatever way he chooses, but if that offer is not made in accordance with Rule 32.4, it will not have the consequences specified in Rules 32.28 to 32.41, and 32.49 to 32.54.

Form and content of a Part 32 offer

An offer to settle which is made in accordance with Rule 32.4 is called a Part 32 offer.

A Part 32 offer must:

1. be in writing;
2. state on its face that it is intended to have the consequences of Part 32;
3. specify a period of not less than 21 days within which the defendant will be liable for the claimant's costs in accordance with Rules 32.28 to 32.33 if the offer is accepted;
4. state whether it relates to the whole of the claim or to part of it or to an issue that arises in it and if so to which part or issue; and
5. state whether it takes into account any counterclaim.

Rule 32.4(3) does not apply if the offer is made less than 21 days before the start of the trial.

An offeror may make a Part 32 offer solely in relation to liability.

Part 32 offers — General provisions

In this Part:

1. the party who makes an offer is the ‘offeror’;

2. the party to whom an offer is made is the ‘offeree’; and

3. ‘the relevant period’ means:

4. in the case of an offer made not less than 21 days before trial, the period stated under Rule 32.4(3) or such longer period as the parties agree;

5. otherwise, the period up to end of the trial or such other period as the Court has determined.

A Part 32 offer:

1. may be made at any time, including before the commencement of proceedings; and
2. may be made in appeal proceedings.

A Part 32 offer which offers to pay or offers to accept a sum of money will be treated as inclusive of all interest until:

1. the date on which the period stated under Rule 32.4(3) expires; or
2. if Rule 32.5 applies, a date 21 days after the date the offer was made.

A Part 32 offer shall have the consequences set out in this Part only in relation to the costs of the proceedings in respect of which it is made, and not in relation to the costs of any appeal from the final decision in those proceedings.

Before expiry of the relevant period, a Part 32 offer may be withdrawn or its terms changed to be less advantageous to the offeree, only if the Court gives permission.

The permission of the court must be sought:

1. by making an application under Part 23, which must be dealt with by a Judge other than the Judge (if any) allocated in advance to conduct the trial, unless the parties agree that such Judge may hear the application;
2. at a trial or other hearing, provided that it is not to the trial Judge or to the Judge (if any) allocated in advance to conduct the trial, unless the parties agree that such Judge may hear the application.

After expiry of the relevant period and provided that the offeree has not previously served notice of acceptance, the offeror may withdraw the offer or change its terms to be less advantageous to the offeree without the permission of the Court.

The offeror does so by serving written notice of the withdrawal or change of terms on the offeree.

Part 32 Offers — Defendant's offers

A Part 32 offer by a defendant to pay a sum of money in settlement of a claim must be an offer to pay a single sum of money.

An offer that includes an offer to pay all or part of the sum, if accepted, at a date later than 14 days following the date of acceptance will not be treated as a Part 32 offer unless the offeree accepts the offer.

Time when a Part 32 offer is made

A Part 32 offer is made when it is served on the offeree.

A change in the terms of a Part 32 offer will be effective when notice of the change is served on the offeree.

Clarification of a Part 32 offer

The offeree may, within 7 days of a Part 32 offer being made, request the offeror to clarify the offer.

If the offeror does not give the clarification requested under 32.19 within 7 days of receiving the request, the offeree may, unless the trial has started, apply for an order that he does so (a clarification order).

An application for a clarification order should be made in accordance with Part 23.

The application notice should state the respects in which the terms of the Part 32 offer are said to need clarification.

If the Court makes a clarification order, it must specify the date when the Part 32 offer is to be treated as having been made.

Acceptance of a Part 32 offer

A Part 32 offer is accepted by serving written notice of the acceptance on the offeror and filing the notice with the Court.

Subject to Rule 32.26, a Part 32 offer may be accepted at any time (whether or not the offeree has subsequently made a different offer) unless the offeror serves notice of withdrawal on the offeree.

The Court's permission is required to accept a Part 32 offer where:

1. Rule 32.45 applies; or
2. the trial has started.

Where the Court's permission is required to accept a Part 32 offer, the permission of the Court must be sought:

1. by making an application under Part 23, which must be dealt with by a Judge other than the Judge (if any) allocated in advance to conduct the trial, unless the parties agree that such Judge may hear the application;
2. at a trial or other hearing, provided that it is not to the trial Judge or to the Judge (if any) allocated in advance to conduct the trial, unless the parties agree that such Judge may hear the application.

Costs consequences of acceptance of a Part 32 offer

Subject to Rules 32.29 and 32.31(1), where a Part 32 offer is accepted within the relevant period, the claimant will be entitled to his costs of the proceedings up to the date on which notice of acceptance was served on the offeror.

Where:

1. a defendant's Part 32 offer relates to only part of the claim; and
2. at the time of serving notice of acceptance within the relevant period the claimant abandons the balance of the claim;

the claimant will be entitled to his costs of the proceedings up to the date of serving notice of acceptance unless the Court orders otherwise.

Costs under Rules 32.28 and 32.29 will be assessed on the standard basis if the amount of costs is not agreed.

Where:

1. a Part 32 offer that was made less than 21 days before the start of trial is accepted; or
2. a Part 32 offer is accepted after expiry of the relevant period;

if the parties do not agree the liability for costs, the Court will make an order as to costs.

Where Rule 32.31(2) applies, unless the Court orders otherwise —

1. the claimant will be entitled to his costs of the proceedings up to the date on which the relevant period expired; and
2. the offeree will be liable for the offeror's costs for the period from the date of expiry of the relevant period to the date of acceptance.

The claimant's costs include any costs incurred in dealing with the defendant's counterclaim if the Part 32 offer states that it takes into account the counterclaim.

The effect of acceptance of a Part 32 offer

If a Part 32 offer is accepted, the claim will be stayed.

In the case of acceptance of a Part 32 offer which relates to the whole claim the stay will be upon the terms of the offer.

If a Part 32 offer which relates to only part of the claim is accepted:

1. the claim will be stayed as to that part upon the terms of the offer; and
2. subject to Rule 32.29, unless the parties have agreed costs, the liability for costs shall be decided by the Court.

If the approval of the Court is required before a settlement can be binding, any stay which would otherwise arise on the acceptance of a Part 32 offer will take effect only when that approval has been given.

Any stay will not affect the power of the Court:

1. to enforce the terms of a Part 32 offer;
2. to deal with any question of costs (including interest on costs) relating to the proceedings.

Unless the parties agree otherwise in writing, where a Part 32 offer by a defendant that is or that includes an offer to pay a single sum of money is accepted, that sum must be paid to the offeree within 14 days of the date of acceptance.

If the accepted sum is not paid within 14 days or such other period as has been agreed the offeree may enter judgment for the unpaid sum.

Where:

1. a Part 32 offer (or part of a Part 32 offer) which is not an offer to Rule 32.39 applies is accepted; and
2. a party alleges that the other party has not honoured the terms of the offer;

that party may apply to enforce the terms of the offer without the need for a new claim.

Acceptance of a Part 32 offer made by one or more, but not all, defendants

Rules 32.43 to 32.45 apply where the claimant wishes to accept a Part 32 offer made by one or more, but not all, of a number of defendants.

If the defendants are sued jointly or in the alternative, the claimant may accept the offer if:

1. he discontinues his claim against those defendants who have not made the offer; and
2. those defendants give written consent to the acceptance of the offer.

If the claimant alleges that the defendants have a several liability to him the claimant may:

1. accept the offer; and
2. continue with his claims against the other defendants if he is entitled to do so.

In all other cases the claimant must apply to the Court for an order permitting him to accept the Part 32 offer.

Restriction on disclosure of a Part 32 offer

A Part 32 offer will be treated as ‘without prejudice except as to costs’.

The fact that a Part 32 offer has been made must not be communicated to the trial Judge or to the Judge (if any) allocated in advance to conduct the trial until the case has been decided.

Rule 32.47 does not apply:

1. where the defence of tender before claim has been raised;
2. where the proceedings have been stayed following acceptance of a Part 32 offer; or
3. where the offeror and the offeree agree in writing that it should not apply.

Costs consequences following judgment

Rules 32.50 to 32.54 apply where upon judgment being entered:

1. a claimant fails to obtain a judgment more advantageous than a defendant's Part 32 offer; or
2. judgment against the defendant is at least as advantageous to the claimant as the proposals contained in a claimant's Part 32 offer.

Subject to Rule 32.54, where Rule 32.49(1) applies, the Court will, unless it considers it unjust to do so, order that the defendant is entitled to:

1. his costs from the date on which the relevant period expired; and
2. interest on those costs.

Subject to Rule 32.54, where Rule 32.49(2) applies, the Court will, unless it considers it unjust to do so, order that the claimant is entitled to:

1. interest on the whole or part of any sum of money (excluding interest) awarded at a rate not exceeding 10% above Base Rate for some or all of the period starting with the date on which the relevant period expired;
2. his costs on the indemnity basis from the date on which the relevant period expired; and
3. interest on those costs at a rate not exceeding 10% above Base Rate.

In considering whether it would be unjust to make the orders referred to in Rules 32.50 and 32.51, the Court will take into account all the circumstances of the case including:

1. the terms of any Part 32 offer;
2. the stage in the proceedings when any Part 32 offer was made, including in particular how long before the trial started the offer was made;
3. the information available to the parties at the time when the Part 32 offer was made; and
4. the conduct of the parties with regard to the giving or refusing to give information for the purposes of enabling the offer to be made or evaluated.

Where the Court awards interest under this rule and also awards interest on the same sum and for the same period under any other power, the total rate of interest may not exceed 10% above Base Rate.

Rules 32.50 and 32.51 do not apply to a Part 32 offer:

1. that has been withdrawn;
2. that has been changed so that its terms are less advantageous to the offeree, and the offeree has beaten the less advantageous offer;
3. made less than 21 days before trial, unless the Court has abridged the relevant period.

Formalities of Part 32 offers and other notices under this Part

A Part 32 offer may be made using Form P32/01.

Where a:

1. Part 32 offer;
2. notice of acceptance;
3. notice of withdrawal; or
4. notice of change of terms;

is to be served on a party who is legally represented, the document to be served must be served on the legal representative.

Part 33 - Payments into Court

Money paid into Court under a Court order

A party who makes a payment into Court under a Court order must:

1. serve notice of the payment on every other party; and
2. in relation to each such notice, file a certificate of service.

Money paid into court where defendant wishes to rely on a defence of tender before claim

Where a defendant wishes to rely on a defence of tender before claim he must make a payment into Court of the amount he says was tendered.

If the defendant does not make a payment in accordance with Rule 33.2, the defence of tender before claim will not be available to him until he does so.

Payment into Court under an order

A party paying money into Court under an order or in support of a defence of tender before claim must:

1. send to the Registry:
   1. the payment;
   2. a sealed copy of the order or a copy of the defence; and
   3. Form P33/01;
2. serve notice of payment on the other parties; and
3. file at Court:
   1. a copy of the notice of payment; and
   2. a certificate of service confirming service of the notice on each party served.

Application relating to funds in Court

Any application relating to money or securities which have been paid into Court, other than an application for the payment out of the money or securities (for example, an application for money to be invested, or for payment of interest to any person):

1. must be made in accordance with Part 23; and
2. may be made without notice, but the Court may direct notice to be served on any person.

Payment out of money paid into Court

Money paid into Court under a Court order or in support of a defence of tender before claim may not be paid out without the Court's permission except where:

1. a Part 32 offer is accepted without needing the permission of the Court; and
2. the defendant agrees that a sum paid into Court by him should be used to satisfy the offer (in whole or in part).

Permission may be obtained by making an application in accordance with Part 23. The application notice must state the grounds on which the order for payment out is sought. Evidence of any facts on which the applicant relies may also be necessary.

Where the Court gives permission under Rule 33.6, it will include a direction for the payment out of any money in Court, including any interest accrued.

Where permission is not required to take money out of Court, the requesting party should file a request for payment in Form P33/02 with Registry, accompanied by a statement that the defendant agrees that the money should be used to satisfy the Part 32 offer in Form P33/03.

The request for payment should contain the following details:

1. where the party receiving the payment is legally represented:
   1. the name, business address and reference of the legal representative; and
   2. the name of the bank and the sort code number, the title of the account and the account number where the payment is to be transmitted;
2. where the party is acting in person:
   1. his name and address; and
   2. his bank account details as in Rule 33.10(1)(b).

Where Rule 33.9 applies, interest accruing up to the date of acceptance will be paid to the defendant.

Subject Rule 33.13, if a party does not wish the payment to be transmitted into his bank account or if he does not have a bank account, he may send a written request to the Registrar for the payment to be made to him by cheque.

Where a party seeking payment out of Court has provided the necessary information, the payment where a party is legally represented must be made to the legal representative.

Part 34 - Discontinuance

Scope of this Part

The Rules in this Part set out the procedure by which a claimant may discontinue all or part of a claim.

A claimant who:

1. claims more than one remedy; and
2. subsequently abandons his claim to one or more of the remedies but continues with his claim for the other remedies;

is not treated as discontinuing all or part of a claim for the purposes of this Part.

Right to Discontinue Claim

A claimant may discontinue all or part of a claim at any time.

However:

1. a claimant must obtain the permission of the Court if he wishes to discontinue all or part of a claim in relation to which:
   1. the Court has granted an interim injunction; or
   2. any party has given an undertaking to the Court;
2. where the claimant has received an interim payment in relation to a claim, he may discontinue that claim only if:
   1. the defendant who made the interim payment consents in writing; or
   2. the Court gives permission;
3. where there is more than one claimant, a claimant may not discontinue unless:
   1. every other claimant consents in writing; or
   2. the Court gives permission.

Where there is more than one defendant, the claimant may discontinue all or part of a claim against all or any of the defendants.

Procedure for Discontinuing

To discontinue a claim or part of a claim, a claimant must:

1. file a notice of discontinuance; and
2. serve a copy of it on every other party to the proceedings.

The claimant must state in the notice of discontinuance which he files that he has served a notice of discontinuance on every other party to the proceedings.

Where the claimant needs the consent of some other party, a copy of the necessary consent must be attached to the notice of discontinuance.

Where there is more than one defendant, the notice of discontinuance must specify against which defendants the claim is discontinued.

Right to apply to have notice of discontinuance set aside

Where the claimant discontinues under Rule 34.3, the defendant may apply to have the notice of discontinuance set aside.

The defendant may not make an application under Rule 34.10 more than 28 days after the date when the notice of discontinuance was served on him.

When discontinuance takes effect where permission of the Court is not needed

Discontinuance against any defendant takes effect on the date when notice of discontinuance is served on him under Rule 34.6.

Subject to Rules 34.10 and 34.11, the proceedings are brought to an end as against him on that date.

This does not affect proceedings to deal with any question of costs.

Liability for Costs

Unless the Court orders otherwise, a claimant who discontinues a claim is liable for the defendant's costs incurred up to and on the date on which notice of the discontinuance was served on him or his legal representative. If proceedings are only partly discontinued:

1. the claimant is liable for costs relating only to the part of the proceedings which he is discontinuing; and
2. unless the Court orders otherwise, the costs which the claimant is liable to pay must not be assessed until the conclusion of the rest of the proceedings.

Discontinuance and subsequent proceedings

A claimant who discontinues a claim needs the permission of the Court to make another claim against the same defendant if:

1. he discontinued the claim after the defendant filed a defence; and
2. the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

Stay of remainder of partly discontinued proceedings where Costs not paid

Rule 34.18 applies where:

1. proceedings are partly discontinued;
2. a claimant is liable to pay costs under Rule 34.15; and
3. the claimant fails to pay those costs within 14 days of:
   1. the date on which the parties agreed the sum payable by the claimant; or
   2. the date on which the Court ordered the costs to be paid.

Where this Rule applies, the Court may stay the remainder of the proceedings until the claimant pays the whole of the costs which he is liable to pay under Rule 34.15.

Part 35 - Miscellaneous provisions relating to hearings

Interpretation

In this Part, reference to a hearing includes a reference to the trial.

General Rule — Hearings to be in public

The general rule is that a hearing is to be in public.

The requirement for a hearing to be in public does not require the Court to make special arrangements for accommodating members of the public.

A hearing, or any part of it, may be in private if:

1. publicity would defeat the object of the hearing;
2. it involves matters relating to national security;
3. it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
4. a private hearing is necessary to protect the interests of any child or patient, including the approval of a compromise or settlement on behalf of a child or patient or an application for the payment of money out of Court to such a person;
5. it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
6. it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
7. the Court considers this to be necessary, in the interests of justice.

The Court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

The decision as to whether to hold a hearing in public or in private must be made by the Judge conducting the hearing having regard to any representations which may have been made to him.

The hearings set out below shall in the first instance be listed by the Court as hearings in private under Rule 35.4(3), namely:

1. an application to suspend a warrant of execution or a warrant of possession or to stay execution where the Court is being invited to consider the ability of a party to make payments to another party;
2. a determination under Rule 15.41 or a redetermination under Rule 15.44 or an application to vary or suspend the payment of a judgment debt by instalments;
3. an application for a charging order (including an application to enforce a charging order), third party debt order, attachment of earnings order, administration order, or the appointment of a receiver;
4. an order to attend Court for questioning;
5. an application for security for costs under Article 46(1) of the Court Law 2004 ( Article 46(1) of DIFC Law No. 10/2004 (opens in a new tab)); and
6. an application by a trustee or personal representative for directions as to bringing or defending legal proceedings.

Nothing in this Part prevents a Judge ordering that a hearing taking place in public shall continue in private, or vice-versa.

If the Court or Judge's room in which the proceedings are taking place has a sign on the door indicating that the proceedings are private, members of the public who are not parties to the proceedings will not be admitted unless the Court permits.

Where there is no such sign on the door of the Court or Judge's room, members of the public will be admitted where practicable. The Judge may, if he thinks it appropriate, adjourn the proceedings to a larger room or Court.

When a hearing takes place in public, members of the public may obtain a transcript of any judgment given or a copy of any order made, subject to payment of the appropriate fee.

When a judgment is given or an order is made in private, if any member of the public who is not a party to the proceedings seeks a transcript of the judgment or a copy of the order, he must seek the permission of the Judge who gave the judgment or made the order.

A judgment or order given or made in private, when drawn up, must have clearly marked in the title:

‘Before [title and name of Judge] sitting in Private’

Failure to attend the trial

The Court may proceed with a trial in the absence of a party but:

1. if no party attends the trial, it may strike out the whole of the proceedings;
2. if the claimant does not attend, it may strike out his claim and any defence to counterclaim. The defendant may prove any counterclaim at trial and obtain judgment on his counterclaim and for costs; and
3. if a defendant does not attend, it may strike out his defence or counterclaim (or both). The claimant may prove his claim at trial and obtain judgment on his claim and for costs.

Where the Court strikes out proceedings, or any part of them, under Rule 35.14, it may subsequently restore the proceedings, or that part.

Where a party does not attend and the Court gives judgment or makes an order against him, the party who failed to attend may apply in accordance with Part 23 for the judgment or order to be set aside.

An application under Rule 35.15 or Rule 35.16 must be supported by evidence, giving reasons for the failure to attend Court and stating when the applicant found out about the order against him.

Where an application is made under Rule 35.15 or Rule 35.16 by a party who failed to attend the trial, the Court will only grant the application if the applicant:

1. acted promptly when he found out that the Court had exercised its power to strike out or to enter judgment or make an order against him;
2. had a good reason for not attending the trial; and
3. has a reasonable prospect of success at the trial.

Timetable for trial

When the Court sets a timetable for a trial in accordance with Rule 26.75 (fixing or confirming the trial date and giving directions) it will do so in consultation with the parties.

Where the trial is fixed for a Sunday, or for a Monday where the Judge is hearing other matters on the Sunday:

All documents to be submitted for the trial must be received by the DIFC Courts Registry by no later than 10am on the Wednesday prior to the trial. Skeleton arguments are to be filed with the DIFC Courts by no later than 2pm on the Thursday prior to the trial.

Trial bundles

General

It is the claimant's responsibility to prepare and lodge the agreed trial bundles.

If another party wishes to put before the Court a bundle that the claimant regards as unnecessary, he must prepare and lodge it himself.

The number, content and organisation of the trial bundles must be approved by the legal representatives with the conduct of the trial.

Consideration must always be given to what documents are and are not relevant and necessary. Where the Court is of the opinion that costs have been wasted by the copying of unnecessary documents it will have no hesitation in making a special order for costs against the person responsible.

Any party preparing a trial bundle should, as a matter of course, provide all other parties who are to take part in the trial with a copy, at the cost of the receiving party. Further copies should be supplied on request, again at the cost of the receiving party.

If oral evidence is to be given at trial, the claimant must provide a clean unmarked set of all relevant trial bundles for use in the witness box. The claimant is responsible for ensuring that these bundles are kept up to date throughout the trial.

Failure to comply with the requirements for lodging bundles for the trial may result in the trial not commencing on the date fixed, at the expense of the party in default. An order for immediate payment of costs may be made.

Agreement of bundles

The preparation of bundles requires a high level of co-operation between legal representatives for all parties. It is the duty of all legal representatives to cooperate to this high level.

When agreeing bundles for trial, the parties should also establish through their legal representatives, and record in correspondence, whether the agreement of bundles:

1. extends no further than agreement of the composition and preparation of the bundles; or
2. includes agreement that the documents in the bundles are authentic (see further Rules 29.115 and 29.116); or
3. includes agreement that the documents may be treated as evidence of the facts stated in them.

The Court will expect parties normally to agree that the documents or at any rate the great majority of them may be treated as evidence of the facts stated in them. A party not willing so to agree should, when the trial bundles are lodged, write a letter to the Court (with a copy to all other parties) stating that it is not willing so to agree, and explaining why that is so.

The number content and organisation of the trial bundles should be agreed in accordance with the following procedure:

1. the claimant must submit proposals to all other parties at least 6 weeks before the date fixed for trial; and
2. the other parties must submit details of additions they require and any suggestions for revision of the claimant's proposals to the claimant at least 4 weeks before the date fixed for trial.

Where it is not possible to agree the contents of the bundle, a summary of the points on which the parties are unable to agree should be included.

Preparation of the trial bundles must be completed not later than 21 days before the date fixed for trial unless the Court orders otherwise.

Unless the Court orders otherwise, a full set of the trial bundles must be lodged with the Listing Office at least 14 days before the date fixed for trial.

Contents

Unless the Court orders otherwise, the trial bundle should include a copy of:

1. the claim form and all statements of case;
2. a case summary and/or chronology where appropriate;
3. requests for further information and responses to the requests;
4. all witness statements to be relied on as evidence;
5. any witness summaries;
6. any notices of intention to rely on hearsay evidence under Rule 29.104;
7. any notices of intention to rely on evidence (such as a plan, photograph etc.) under Rule 29.126 which is not:
   1. contained in a witness statement, affidavit or experts report;
   2. being given orally at trial;
   3. hearsay evidence under Rule 29.104;
8. any experts' reports and responses to them;
9. any order giving directions as to the conduct of the trial;
10. any other documents required by a Court order;
11. any other documents required by any other Rule or Practice Direction; and
12. any other necessary documents.

The originals of the documents contained in the trial bundle, together with copies of any other Court orders should be available at the trial.

Organisation

Bundles should be prepared as follows:

1. No more than one copy of any one document should be included, unless there is good reason for doing otherwise;
2. Contemporaneous documents, and correspondence, should be included in chronological order;
3. Where a contract or similar document is central to the case it may be included in a separate place provided that a page is inserted in the chronological run of documents to indicate:
   1. the place the contract or similar document would have appeared had it appeared chronologically; and
   2. where it may be found instead;
4. Documents in manuscript, or not fully legible, should be transcribed; the transcription should be marked and placed adjacent to the document transcribed;
5. Documents that are not in English should be translated; the translation should be marked and placed adjacent to the document transcribed; the translation should be agreed, or, if it cannot be agreed, each party's proposed translation should be included;
6. If a document has to be read across rather than down the page, it should be so placed in the bundle as to ensure that the top of the text is nearest the spine;
7. No bundle should contain more than 300 pages;
8. Bundles should not be overfilled, and should allow sufficient room for later insertions. Subject to this, the size of file used should not be a size that is larger than necessary for the present and anticipated contents;
9. Bundles should be paginated, in the bottom right hand corner and in a form that can clearly be distinguished from any existing pagination on the document;
10. Bundles should be indexed, save that a chronological bundle of contemporaneous documents need not be indexed if an index is unlikely to be useful;
11. Bundles should be numbered and named on the outside and on the inside front cover, the label to include the short title of the case, and a description of the bundle (including its number, where relevant).

Documents within bundles should be marked as follows:

1. When copy documents from exhibits have been included in the bundle(s), then unless clearly unnecessary, the copy of the affidavit or witness statement to which the documents were exhibited should be marked in the right hand margin (in manuscript if need be) to show where the document referred to may be found in the bundle(s).
2. Unless clearly unnecessary, where copy documents in a bundle are taken from the disclosure of more than one party, the documents should be marked in the top right hand corner (in manuscript if need be) to show from which party's disclosure the copy document has been taken;
3. Where there is a reference in a statement of case or witness statement to a document which is contained in the trial bundles, a note should be made in the margin (if necessary in manuscript) identifying the place where that document is to be found. Unless otherwise agreed this is the responsibility of the party tendering the statement of case or witness statement.

For the trial a handy-sized core bundle should normally be provided containing the really important documents in the case. The documents in this bundle should be paginated, but each page should also bear its bundle and page number reference in the main bundles. It is particularly important to allow sufficient room for later insertions (see Rule 35.37(8) above).

Large documents, such as plans, should be placed in an easily accessible file.

Representation at trial of Companies or Other Corporations

At any hearing, a written statement containing the following information should be provided for the Court:

1. the name and address of each of the parties' legal representatives for trial;
2. his qualification or entitlement to act as a legal representatives for trial; and
3. the party for whom he so acts.

A company or other corporation may be represented at trial by an employee who is not otherwise authorised to appear before the Court if:

1. the employee has been authorised by the company or corporation to appear at trial on its behalf; and
2. the Court gives permission.

Where a party is a company or other corporation and is to be represented at a hearing by an employee, the written statement should contain the following additional information:

1. The full name of the company or corporation as stated in its certificate of registration;
2. The registered number of the company or corporation;
3. The position or office in the company or corporation held by the representative; and
4. The date on which and manner in which the representative was authorised to act for the company or corporation, e.g. ____ 20__: written authority from managing director; or __** 20__: Board resolution dated __** 20____.

Although Rule 35.42 allows a company or other corporation with the permission of the Court to be represented at trial by an employee, the complexity of most cases in the Court will make that unsuitable. Accordingly, permission will be given only in unusual circumstances.

Permission under Rule 35.42 should be obtained in advance of the hearing from the Judge who is to hear the case. If it is for any reason impracticable or inconvenient to do so, the permission should be obtained from any Judge by whom the case could be heard.

The permission may be obtained informally and without notice to the other parties. The Judge who gives the permission should record in writing that he has done so and supply a copy to the company or corporation in question and to any other party who asks for one.

Permission will not normally be granted under Rule 35.42 in contempt proceedings.

Information technology at trial

The use of information technology at trial is encouraged where it is likely substantially to save time and cost or to increase accuracy.

If any party considers that it might be advantageous to make use of information technology in preparation for, or at, trial, the matter should be raised at the case management conference. This is particularly important if it is considered that document handling systems would assist disclosure and inspection of documents or the use of documents at trial.

Where information technology is to be used for the purposes of presenting the case at trial, the same system must be used by all parties and must be made available to the Court.

Reading lists, authorities and trial timetable

Unless the Court orders otherwise, a single reading list approved by all the parties' legal representatives for trial must be lodged with the Registry not later than 1pm, two days (i.e. two clear days) before the date fixed for trial together with an estimate of the time required for reading.

If any party objects to the Judge reading any document in advance of the trial, the objection and its grounds should be clearly stated in a letter accompanying the trial bundles and in the skeleton argument of that party.

Parties should consider in particular whether they have any objection to the Judge's reading the witness statements before the trial.

In the absence of objection, the Judge will be free to read the witness statements and documents in advance.

A composite bundle of the authorities referred to in the skeleton arguments should be lodged with the Registry as soon as possible after skeleton arguments have been exchanged.

Unless otherwise agreed, the preparation of the bundle of authorities is the responsibility of the claimant, who should provide copies to all other parties. The parties' legal representatives should liaise in relation to the production of bundles of authorities to ensure that the same authority does not appear in more than one bundle.

When lodging the reading list, the claimant should also lodge a trial timetable.

A trial timetable may have been fixed by the Judge at the pre-trial review. If it has not, a trial timetable should be prepared by the legal representatives for the claimant after consultation with the legal representatives for all other parties.

If there are differences of view between the legal representatives for the claimant and legal representatives for other parties, these should be shown.

The trial timetable will provide for oral submissions, witness evidence and expert evidence over the course of the trial. On the first day of the trial the Judge may fix the trial timetable, subject to any further order.

Skeleton arguments etc. at trial

Written skeleton arguments should be prepared by each party. Guidelines on the preparation of skeleton arguments are set out in Schedule A to Part 23.

Unless otherwise ordered, the skeleton arguments should be served on all other parties and lodged with the Court as follows:

1. by the claimant, not later than 1pm, two days (i.e. two clear days) before the start of the trial;
2. by each of the defendants , not later than 1pm, one day (i.e. one clear day) before the start of the trial.

In heavier cases, it will often be appropriate for skeleton arguments to be served and lodged at earlier times than indicated at Rule 35.62. The timetable should be discussed between the legal representatives and may be the subject of a direction in the pre-trial timetable or at any pre-trial review.

The claimant should provide a chronology with his skeleton argument. Indices (i.e. documents that collate key references on particular points, or a substantive list of the contents of a particular bundle or bundles) and dramatis personae, should also be provided where these are likely to be useful. Guidelines on the preparation of chronologies and indices are set out in Schedule A to Part 23.

Trial sitting days and hearing trials in public

Trial sitting days will not normally include Fridays, Saturdays and UAE Public Holidays.

Where it is necessary in order to accommodate hearing evidence from certain witnesses or types of witness, the Court may agree to sit outside normal hours.

Oral opening statements at trial

Oral opening statements should as far as possible be uncontroversial and in any event no longer than the circumstances require. Even in a very heavy case, oral opening statements may be very short.

At the conclusion of the opening statement for the claimant, the legal representatives for each of the other parties will usually each be invited to make a short opening statement.

Applications in the course of trial

It will not normally be necessary for an application notice to be issued for an application which is to be made during the course of the trial, but all other parties should be given adequate notice of the intention to apply.

Unless the Judge directs otherwise, the parties should prepare skeleton arguments for the hearing of the application.

Oral closing submissions at trial

All parties will be expected to make oral closing submissions, whether or not closing submissions have been made in writing. It is a matter for the legal representatives to consider how in all the circumstances these oral submissions should be presented.

Unless the trial Judge directs otherwise, the claimant will make his oral closing submissions first, followed by the defendant (s) in the order in which they appear on the claim form with the claimant having a right of reply.

Written closing submissions at trial

In a more substantial trial, the Court will normally also require closing submissions in writing after oral closing submissions. However, the trial judge may decide:

1. that written closing submissions are unnecessary;
2. may direct the scope of the written submissions or;
3. dispense with them.

Oral submissions may in some cases also be unnecessary, and it is open to the trial judge to decide accordingly.

In the case of written submissions the Court will normally allow an appropriate period of time after the conclusion of the evidence to allow the preparation of these submissions.

Even in a less substantial trial, the Court will normally require a skeleton argument on matters of law.

Judgment

Where judgment is to be reserved the Judge may, at the conclusion of the hearing, invite the views of the parties' legal representatives as to the arrangements to be made for the handing down of the judgment.

The Court may provide a copy of the draft judgment to the parties' legal representatives by 4pm on the second working day before handing down, or at such other time as the Court may direct.

If the Judge intends to hand down a written judgment, a copy of the draft text marked

“Unapproved judgment. No permission is granted to copy or use in Court”

and bearing the rubric:

“Confidential to the parties and their legal representatives”

may, at the Court's discretion, be supplied to the advocates one clear day before the judgment is to be delivered.

A copy of the draft judgment may be shown, in confidence, to the parties provided that:

1. neither the judgment nor its substance is disclosed to any other person or used in the public domain; and
2. no action is taken (other than internally) in response to the judgment, before the judgment is handed down.

Any breach of the obligation of confidentiality prescribed by Rule 35.79 may be treated as contempt of Court.

The case may be listed for judgment, and the judgment handed down at the appropriate time.

Legal representatives should inform the Court not later than noon on the day before judgment is to be handed down of any typographical or other errors of a similar nature which the Judge might wish to correct.

Unless the parties or their legal representatives are told otherwise when the draft judgment is circulated, the parties must, in respect of any draft agreed order:

1. e-mail a copy to the Registry (together with any proposed corrections or amendments to the draft judgment ); and
2. file four copies in the Registry, by noon on the working day before handing down.

A copy of a draft order must bear the case reference, the date of handing down and the name of the Judge.

Judgment is not delivered until it is formally pronounced in an open hearing by the Court or is issued by the Registry to the parties or their legal representatives.

Where any consequential orders are agreed, the parties' legal representatives need not attend on the handing down.

Where a legal representative does attend, the Court may, if it considers such attendance was unnecessary, disallow the costs of the attendance.

In a matter heard by more than one Judge, the judgment may be handed down by a single member of the Court.

Copies of the approved judgment will be made available to the parties, to law reporters and to any other person wanting a copy.

The Judge may direct that the written judgment stand as the definitive record and that no transcript need be made. Any editorial corrections made at the time of handing down will be incorporated in an approved official text as soon as possible.

Costs

The rules governing the award and assessment of costs are contained in Parts 38 to 40.

The immediate assessment procedure provided for in Part 38 also applies to trials lasting one day or less.

Impounded documents

Documents impounded by order of the Court must not be released from the custody of the Court except in compliance:

1. with a Court order; or
2. with a written request made by the Attorney General of Dubai.

A document released from the custody of the Court under Rule 35.92(2) must be released into the custody of the person who requested it.

Documents impounded by order of the Court, while in the custody of the Court, may not be inspected except by a person authorised to do so by a Court order.

Settlement or discontinuance after the trial date is fixed

Where:

1. an offer to settle a claim is accepted;
2. or a settlement is reached; or
3. a claim is discontinued, which disposes of the whole of a claim for which a date or ‘window’ has been fixed for the trial;

the parties must ensure that the Registry is notified immediately.

If an order is drawn up giving effect to the settlement or discontinuance of a claim, a copy of the sealed order should be filed with the Registry.

Recording of proceedings

At any hearing the proceedings will be tape recorded unless the Judge directs otherwise.

No party or member of the public may use unofficial recording equipment in any Court or Judge's room without the permission of the Court. To do so without permission constitutes a contempt of Court.

1. Any party or person may require a transcript or transcripts of the recording of any hearing to be supplied to him, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.
2. Video and audio recordings of a hearing will normally only be provided for the purpose of preparing a transcript of the proceedings or to provide a record for the private use of the party or person by whom it is requested. Such recordings shall not be used for any other purpose without express authorisation of the Court and shall not, without express permission of the Court, be published or broadcast in any way whatsoever.

Where the person requiring the transcript or transcripts is not a party to the proceedings and the hearing or any part of it was held in private under Rule 35.4, Rule 35.99 does not apply unless the Court so orders.

Exhibits at trial

Exhibits which are handed in and proved during the course of the trial should be recorded on an exhibit list and kept in the custody of the Court until the conclusion of the trial, unless the Judge directs otherwise. At the conclusion of the trial it is the parties' responsibility to obtain the return of those exhibits which they handed in and to preserve them for the period in which any appeal may take place.

Part 36 - Judgments and Orders

I - Judgments and orders

Scope of this Part

This Section sets out Rules about judgments and orders which apply except where any other of these Rules or a Practice Direction makes a different provision in relation to the judgment or order in question.

Standard requirements

Every judgment or order must state the name and judicial title of the person who made it, unless it is:

1. default judgment entered under Rule 13.7 (entry of default judgment where judgment is entered by a Court officer) or a default costs certificate obtained under Rule 40.17; or
2. judgment entered under Rule 15.17, 15.23 and 15.29 (entry of judgment on admission where judgment is entered by a Court Officer).

Every judgment or order must:

1. bear the time of day at which and date on which it is given or made; and
2. be sealed by the Court.

Court orders may be issued and sealed by the Registry electronically.

Where a party applies for permission to appeal against a judgment or order at the hearing at which the judgment or order was made, the judgment or order shall state:

1. whether or not the judgment or order is final; and
2. whether the Court gives permission to appeal.

Examples of forms of trial judgment

Form P36/01 is the general form of judgment.

A trial judgment should have the following matters set out in a preamble:

1. any order made during the course of the trial concerning the use of evidence;
2. any matters that were agreed between the parties prior to or during the course of the trial in respect of:
   1. liability;
   2. contribution;
   3. the amount of the damages or part of the damages; and
3. the findings of the Judge in respect of each head of damage in a personal injury case.

Statement as to service of a claim form

Where a party to proceedings which have gone to trial requires a statement to be included in the judgment as to where, and by what means the claim form issued in those proceedings was served, application should be made to the trial Judge when judgment is given.

If the Judge so orders, the statement will be included in a preamble to the judgment as entered.

Adjustment of final judgment figure in respect of an interim payment

In a final judgment where an interim payment has previously been made which is less than the total amount awarded by the Judge, the judgment or order should set out in a preamble:

1. the total amount awarded by the Judge; and
2. the amount and date of the interim payment(s).

The total amount awarded by the Judge should then be reduced by the total amount of any interim payments, and the judgment or order should then provide for entry of judgment and payment of the balance.

In a final judgment where an interim payment has previously been made which is more than the total amount awarded by the Judge, the judgment or order should set out in a preamble:

1. the total amount awarded by the Judge; and
2. the amount and date of the interim payment(s).

An order should then be made for repayment, reimbursement, variation or discharge under Rule 25.87 and for interest on an overpayment under Rule 25.90.

Currency other than US Dollars

Where judgment is ordered to be entered in a currency other than US Dollars, the order should be in the following form:

It is ordered that the defendant pay the claimant (state the sum in the currency other than US Dollars) or the US Dollar equivalent at the time of payment.

Costs

Attention is drawn to Parts 38 to 40, in particular, to the Court's power to make a summary assessment of costs and the provisions relating to interest in detailed assessment proceedings.

Attention is also drawn to Rule 38.56 which provides that if an order makes no mention of costs, none are payable in respect of the proceedings to which it relates.

Judgments paid by instalments

Where a judgment is to be paid by instalments, the judgment should set out:

1. the total amount of the judgment;
2. the amount of each instalment;
3. the number of instalments and the date on which each is to be paid; and
4. to whom the instalments should be paid.

Drawing up and filing of judgments and orders

Except for orders made by the Court of its own initiative and unless the Court otherwise orders, every judgment or order will be drawn up by the parties.

Where a judgment or an order is to be drawn up by a party:

1. he must file it no later than 48 hours after the date on which the Court ordered or permitted him to draw it up so that it can be sealed by the Court; and
2. if he fails to file it within that period, any other party may draw it up and file it.

Where any judgment, order or direction is to be served outside the DIFC, unless the Court otherwise directs:

1. in proceedings on notice the parties must agree and lodge with the Court an Arabic translation of any judgment, order or direction within 48 hours of the same being given, made or handed down as the case may be, in default of which the Court may accept one party's translation or suspend or revoke the judgment, order or direction on such terms as it thinks fit;
2. in without notice proceedings the party seeking relief must provide an Arabic translation of the order sought and made; or
3. in the event of any inconsistency between the Arabic and English versions of any judgment, order or direction, the English version shall prevail.

The Court may direct that:

1. a judgment or an order drawn up by a party must be checked by the Court before it is sealed; or
2. before a judgment or an order is drawn up by the Court, the parties must file an agreed statement of its terms.

If the Court directs that a judgment or order which is being drawn up by a party must be checked by the Court before it is sealed, the party responsible must file the draft within 48 hours of the date the order was made with a request that the draft be checked before it is sealed.

If the Court directs the parties to file an agreed statement of terms of an order which the Court is to draw up, the parties must do so no later than 48 hours from the date the order was made, unless the Court directs otherwise.

If the Court requires the terms of an order which is being drawn up by the Court to be agreed by the parties the Court may direct that a copy of the draft order is to be sent to all the parties:

1. for their agreement to be endorsed on it and returned to the Court before the order is sealed; or
2. with notice of an appointment to attend before the Court to agree the terms of the order.

Service of judgments and orders

Where a judgment or an order has been drawn up by a party and is to be served by the Court:

1. the party who drew it up must file a copy to be retained at Court and sufficient copies for service on him and on the other parties; and
2. once it has been sealed, the Court must serve a copy of it on each party to the proceedings.

Unless the Court directs otherwise, any order made otherwise than at trial must be served on:

1. the applicant and the respondent; and
2. any other person on whom the Court orders it to be served.

Power to require judgment or order to be served on a party as well as his legal representative

Where the party on whom a judgment or order is to be served is acting by a legal representative, the Court may order the judgment or order to be served on the party as well as on his legal representative.

Agreed orders

An application for an agreed order must include a draft of the proposed order signed on behalf of all the parties to whom it relates.

Where proceedings are to be stayed on agreed terms:

1. The draft order should include the following:
   1. The Claimant and the Defendant having agreed to the terms set forth in the schedule hereto, IT IS ORDERED THAT all further proceedings in this claim be stayed, except for the purpose of carrying such terms into effect.
   2. Liberty to apply in order to carry such terms into effect; and
2. Settlement terms should be set out in a schedule attached to the draft order.

When judgment or order takes effect

A judgment or order takes immediate effect from the time on the day when it is given or made, or such later time or date as the Court may specify.

Time from which interest begins to run

Where interest is payable on a judgment pursuant to Article 39 of the Court Law 2004 ( Article 39 of DIFC Law No. 10/2004 (opens in a new tab)), the interest shall begin to run from the date that judgment is given unless:

1. a Rule in another Part or a Practice Direction makes different provision; or
2. the Court orders otherwise.

The Court may order that interest shall begin to run from a date before the date that judgment is given.

Who may apply to set aside or vary a judgment or order

A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied.

Time for complying with a judgment or order

A party must comply with a judgment or order for the payment of an amount of money (including costs) within 14 days of the date of the judgment or order, unless:

1. the judgment or order specifies a different date for compliance (including specifying payment by instalments);
2. any of these Rules specifies a different date for compliance; or
3. the Court has stayed the proceedings or judgment.

Orders requiring an act to be done

An order which requires an act to be done (other than a judgment or order for the payment of an amount of money) must specify the time within which the act should be done.

The consequences of failure to do an act within the time specified may be set out in the order. In this case the wording of the following example suitably adapted must be used:

“Unless the [claimant/defendant] serves his list of documents by 4.00pm on Wednesday, 31 January 2007 his [claim/defence] will be struck out and judgment entered for the [defendant/claimant].”

Non-compliance with a judgment or order

An order which restrains a party from doing an act or requires an act to be done should, if disobedience is to be dealt with by an application to bring contempt of Court proceedings, have a penal notice endorsed on it as follows:

“If you [name] disobey this order you may be held to be in contempt of Court and may be imprisoned, fined or have your assets seized.”

The provisions of Rule 36.35 also apply to an order which contains an undertaking by a party to do or not do an act, subject to Rule 36.39.

The Court has the power to decline to:

1. accept an undertaking; and
2. deal with disobedience in respect of an undertaking by contempt of Court proceedings, unless the party giving the undertaking has made a signed statement to the effect that he understands the terms of his undertaking and the consequences of failure to comply with it.

The statement may be endorsed on the order containing the undertaking or may be filed in a separate document such as a letter.

Correction of errors in judgments and orders

The Court may at any time correct an accidental slip or omission in a judgment or order.

An application for a correction must be made by application notice and the standard application fee should be paid. The application notice should be precise in describing the nature of the error, should set out the exact wording of the correction sought and, where appropriate should be accompanied by a draft order. An application may be dealt with without a hearing:

1. where the applicant so requests;
2. with the consent of the parties; or
3. where the Court does not consider that a hearing would be appropriate.

The Judge may deal with the application without notice if the slip or omission is obvious or may direct notice of the application to be given to the other party or parties.

If the application is opposed it should, if practicable, be listed for hearing before the Judge who gave the judgment or made the order.

The Court has an inherent power to vary its own orders to make the meaning and intention of the Court clear.

Where the Court allows an application to correct an order and the reason for the error was a clerical mistake on the part of the Registry, the application fee will be refunded.

Cases where Court gives judgment both on claim and counterclaim

Rule 36.48 applies where the Court gives judgment for specified amounts both for the claimant on his claim and against the claimant on a counterclaim.

If there is a balance in favour of one of the parties, it may order the party whose judgment is for the lesser amount to pay the balance.

In a case to which Rule 36.48 applies, the Court may make a separate order as to costs against each party.

Judgment in favour of certain part owners relating to the detention of goods

In Rule 36.51 ‘part owner’ means one of two or more persons who have an interest in the same goods.

Where:

1. a part owner makes a claim relating to the detention of the goods; and
2. the claim is not based on a right to possession;

any judgment or order given or made in respect of the claim is to be for the payment of damages only, unless the claimant had the written authority of every other part owner of the goods to make the claim on his behalf as well as for himself.

II - Declaratory judgments

The Court may make binding declarations whether or not any other remedy is claimed.

III - Preparation of documents under an order

Where a judgment or order directs any document to be prepared, executed or signed, the order will state:

1. the person who is to prepare the document; and
2. if the document is to be approved, the person who is to approve it.

If the parties are unable to agree on the form of the document, any party may apply in accordance with Part 23 for the form of the document to be settled.

In such case the Judge may:

1. settle the document himself; or
2. refer it to:
   1. the Registrar; or
   2. an Assessor in accordance with Part 31 subject to such modifications as he thinks fit.

IV - Accounts and inquiries

Accounts and inquiries: General

Where the Court orders any account to be taken or any inquiry to be made, it may, by the same or a subsequent order, give directions as to the manner in which the account is to be taken and verified or the inquiry is to be conducted.

In particular, the Court may direct that in taking an account, the relevant books of account shall be evidence of their contents but that any party may take such objections to the contents as he may think fit.

Any party may apply to the Court in accordance with Part 23 for directions as to the taking of an account or the conduct of an inquiry or for the variation of directions already made.

Every direction for the taking of an account or the making of an inquiry shall be numbered in the order so that, as far as possible, each distinct account and inquiry is given its own separate number.

Verifying the account

Subject to any order to the contrary:

1. the accounting party must make out his account and verify it by an affidavit to which the account is exhibited; and
2. the accounting party must file the account with the Court and at the same time notify the other parties that he has done so and of the filing of any affidavit verifying or supporting the account.

Objections

Any party who wishes to contend:

1. that an accounting party has received more than the amount shown by the account to have been received;
2. that the accounting party should be treated as having received more than he has actually received;
3. that any item in the account is erroneous in respect of amount; or
4. that in any other respect the account is inaccurate;

must, unless the Court directs otherwise, give written notice to the accounting party of his objections.

The written notice referred to in Rule 36.61 must, so far as the objecting party is able to do so:

1. state the amount by which it is contended that the account understates the amount received by the accounting party;
2. state the amount which it is contended that the accounting party should be treated as having received in addition to the amount he actually received;
3. specify the respects in which it is contended that the account is inaccurate; and
4. in each case, give the grounds on which the contention is made.

The contents of the written notice must be verified by an affidavit to which the notice is an exhibit.

Allowances

In taking any account all just allowances shall be made without any express direction to that effect.

Management of proceedings

The Court may at any stage in the taking of an account or in the course of an inquiry direct a hearing in order to resolve an issue that has arisen and for that purpose may order that points of claim and points of defence be served and give any necessary directions.

Delay

If it appears to the Court that there is undue delay in the taking of any account or the progress of any inquiry the Court may require the accounting party or the party with the conduct of the inquiry, as the case may be, to explain the delay and may then make such order for the management of the proceedings (including a stay) and for costs as the circumstances may require.

Distribution

Where some of the persons entitled to share in a fund are known but there is, or is likely to be, difficulty or delay in ascertaining other persons so entitled, the Court may direct, or allow, immediate payment of their shares to the known persons without reserving any part of those shares to meet the subsequent costs of ascertaining the other persons.

Accounts and inquiries to be conducted before the Registrar

Unless the Court orders otherwise, an account or inquiry will be taken or made by the Registrar.

Advertisements

The Court may:

1. direct any necessary advertisement; and
2. fix the time within which the advertisement should require a reply.

Examination of claims

Where the Court orders an account of debts or other liabilities to be taken, it may direct any party, within a specified time, to:

1. examine the claims of persons claiming to be owed money out of the estate or fund in question;
2. determine, so far as he is able, which of them are valid; and
3. file written evidence:
   1. stating his findings and his reasons for them; and
   2. listing any other debts which are or may be owed out of the estate or fund.

Where the Court orders an inquiry for next of kin or other unascertained claimants to an estate or fund, it may direct any party, within a specified time, to:

1. examine the claims that are made;
2. determine, so far as he is able, which of them are valid; and
3. file written evidence stating his findings and his reasons for them.

If the personal representatives or trustees concerned are not the parties directed by the Court to examine claims, the Court may direct them to join with the party directed to examine claims in producing the written evidence required by this rule.

Consideration of claims by the Court

For the purpose of considering a claim the Court may:

1. direct it to be investigated in any manner;
2. direct the person making the claim to give further details of it; and
3. direct that person to:
   1. file written evidence; or
   2. attend Court to give evidence;

to support his claim.

Notice of decision

If:

1. the Court has allowed or disallowed any claim or part of a claim; and
2. the person making the claim was not present when the decision was made;

the Court will serve on that person a notice informing him of its decision.

Interest on debts

Where an account of the debts of a deceased person is directed by any judgment, unless the deceased's estate is insolvent or the Court orders otherwise, interest shall be allowed:

1. on any debt which carries interest, at the rate it carries; and
2. on any other debt, from the date of the judgment, at the rate payable on judgment debts at that date.

Where interest on a debt is allowed under Rule 36.75(2), it shall be paid out of any assets of the estate which remain after payment of:

1. any costs of the proceedings directed to be paid out of the estate;
2. all the debts which have been established; and
3. the interest on such of those debts as by law carry interest.

For the purpose of Rules 36.75 and 36.76:

1. ‘debt’ includes funeral, testamentary or administration expenses; and
2. in relation to any expenses incurred after the judgment, Rule 36.75(2) applies as if, instead of the date of the judgment, it referred to the date when the expenses became payable.

Part 37 - Change of Legal Representative

Legal representative acting for a party

Where the address for service of a party is the business address of his legal representative, the legal representative will be considered to be acting for that party until the provisions of this Part have been complied with.

A legal representative appointed to represent a party only as an advocate at a hearing will not be considered to be acting for that party within the meaning of this Part.

Change of legal representative — Duty to give notice

Rules 37.4 to 37.10 apply where:

1. a party for whom a legal representative is acting wants to change his legal representative;
2. a party, after having conducted the claim in person, appoints a legal representative to act on his behalf (except where the legal representative is appointed only to act as an advocate for a hearing); or
3. a party, after having conducted the claim by a legal representative, intends to act in person.

Where Rules 37.3 to 37.10 apply, the party or his legal representative (where one is acting) must:

1. file notice of the change; and
2. serve notice of the change on every other party and, where Rule 37.3(1) or 37.3(3) applies, on the former legal representative.

The notice must state the party's new address for service.

The notice filed at Court must state that notice has been served as required by paragraph 37.4(2).

Where a party has changed his legal representative or intends to act in person, the former legal representative will be considered to be the party's legal representative unless and until:

1. notice is filed and served in accordance with paragraph 37.4; or
2. the Court makes an order under Rules 37.11 to 37.13 and the order is served as required by Rule 37.13.

In addition, where a party or legal representative changes his address for service, a notice of that change should be filed and served on every party.

A party who, having conducted a claim by a legal representative, intends to act in person must give in his notice an address for service that is within the jurisdiction.

Form P37/01 should be used to give notice of any change.

Order that a legal representative has ceased to act

A legal representative may apply for an order declaring that he has ceased to be the legal representative acting for a party.

Where an application is made under Rule 37.11:

1. the application should be made in accordance with Part 23;
2. notice of the application must be given to the party for whom the legal representative is acting, unless the Court directs otherwise; and
3. the application must be supported by evidence.

Where the Court makes an order that a legal representative has ceased to act:

1. a copy of the order must be served on every party to the proceedings;
2. if it is served by a party or the legal representative, the party or the legal representative (as the case may be) must file a certificate of service in Form P37/01; and
3. the order takes effect when it is served.

Removal of legal representative who has ceased to act on application of another party

Where:

1. a legal representative who has acted for a party:
   1. has died;
   2. has become bankrupt;
   3. has ceased to practice; or
   4. cannot be found; and
2. the party has not given notice of a change of legal representative or notice of intention to act in person as required by Rule 37.4;

any other party may apply for an order declaring that the legal representative has ceased to be the legal representative acting for the other party in the case.

Where an application is made under Rule 37.14:

1. the application should be made in accordance with Part 23;
2. notice of the application must be given to the party to whose legal representative the application relates, unless the Court directs otherwise; and
3. the application must be supported by evidence.

Where the Court makes an order made under Rule 37.14:

1. a copy of the order must be served on every other party to the proceedings;
2. where it is served by a party, that party must file a certificate of service Form P37/01; and
3. the order takes effect when it is served.

New address for service where order made under Rules *37.11* or *37.14*

Where the Court has made an order under Rule 37.11 that a legal representative has ceased to act or under Rule 37.14 declaring that a legal representative has ceased to be the legal representative for a party, the party for whom the legal representative was acting must give a new address for service to comply with Rule 9.15.

Part 38 - General Rules about costs

Definitions and application

In this Part, unless the context otherwise requires:

1. ‘receiving party’ means a party entitled to be paid costs;
2. ‘paying party’ means a party liable to pay costs;
3. ‘fixed costs’ means the amounts which are to be allowed in respect of legal representatives' charges in the circumstances set out in Part 39.

The costs to which Parts 38 to 40 apply include the following costs where those costs may be assessed by the Court:

1. costs of proceedings before an arbitrator or umpire;
2. costs of proceedings before a tribunal or other statutory body; and
3. costs which are payable by one party to another party under the terms of a contract, where the Court makes an order for an assessment of those costs.

Meaning of immediate assessment

‘Immediate assessment’ means the procedure by which the Court, when making an order about costs, orders payment of a sum of money instead of fixed costs or ‘detailed assessment’.

Meaning of detailed assessment

‘Detailed assessment’ means the procedure by which the amount of costs is decided by the Court in accordance with Part 40.

Legal representative's duty to notify client

Where:

1. the Court makes a costs order against a legally represented party; and
2. the party is not present when the order is made;

the party's legal representative must notify his client in writing of the costs order no later than 7 days after the legal representative receives notice of the order.

Court's discretion and circumstances to be taken into account when exercising its discretion as to costs

Subject to Rules 38.15 to 38.16 the Court has discretion as to:

1. whether costs are payable by one party to another;
2. the amount of those costs; and
3. when they are to be paid.

If the Court decides to make an order about costs:

1. the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
2. the Court may make a different order.

In deciding what order (if any) to make about costs, the Court must have regard to all the circumstances, including:

1. the conduct of all the parties;
2. whether a party has succeeded on part of his case, even if he has not been wholly successful; and
3. any payment into Court or admissible offer to settle made by a party which is drawn to the Court's attention and which is not a Part 32 offer.

The conduct of the parties includes:

1. conduct before, as well as during, the proceedings;
2. whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
3. the manner in which a party has pursued or defended his case or a particular allegation or issue; and
4. whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim.

The orders which the Court may make include an order that a party must pay:

1. a proportion of another party's costs;
2. a stated amount in respect of another party's costs;
3. costs from or until a certain date only;
4. costs incurred before proceedings have begun;
5. costs relating to particular steps taken in the proceedings;
6. costs relating only to a distinct part of the proceedings; and
7. interest on costs from or until a certain date, including a date before judgment.

Where the Court would otherwise consider making an order under Rule 38.10(6), it must instead, if practicable, make an order under paragraph 38.10(1) or 38.10(3).

There are certain costs orders which the Court will commonly make in proceedings before trial. The following table sets out the general effect of these orders. The table is not an exhaustive list of the orders which the Court may make.

1. preparing for and attending any hearing at which the judgment or order which has been set aside was made;

2. preparing for and attending any hearing to set aside the judgment or order in question;

3. preparing for and attending any hearing at which the Court orders the proceedings or the part in question to be adjourned;

4. any steps taken to enforce a judgment or order which has subsequently been set aside.

   1. Costs of and caused by:

      Where, for example, the Court makes this order on an application to amend a statement of case, the party in whose favour the costs order is made is entitled to the costs of preparing for and attending the application and the costs of any consequential amendment to his own statement of case.

   2. Costs here and below:

      The party in whose favour the costs order is made is entitled not only to his costs in respect of the proceedings in which the Court makes the order but also to his costs of the proceedings in any lower Court.

   3. No order as to costs.

   4. Each party to pay his own costs:

      Each party is to bear his own costs of the part of the proceedings to which the order relates whatever costs order the Court makes at the end of the proceedings.

Where the Court has ordered a party to pay costs, it may order an amount to be paid on account before the costs are assessed.

Where a party entitled to costs is also liable to pay costs the Court may assess the costs which that party is liable to pay and either:

1. set off the amount assessed against the amount the party is entitled to be paid and direct him to pay any balance; or
2. delay the issue of a certificate for the costs to which the party is entitled until he has paid the amount which he is liable to pay.

Costs in the small claims tribunal (‘SCT’)

The SCT may not order a party to a small claim to pay a sum to another party in respect of that other party's costs, fees and expenses, including those relating to an appeal, except:

1. such part of any Court or Tribunal fees paid by that other party as the SCT may consider appropriate;
2. such further costs as the SCT may assess by the summary procedure and order to be paid by a party who has behaved unreasonably.

A party's rejection of an offer in settlement will not of itself constitute unreasonable behaviour under Rule 38.15(1) but the Court may take it into consideration when it is applying the unreasonableness test.

Basis of assessment

Where the Court is to assess the amount of costs (whether by immediate or detailed assessment) it will assess those costs:

1. on the standard basis; or
2. on the indemnity basis;

but the Court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

Where the amount of costs is to be assessed on the standard basis, the Court will:

1. only allow costs which are proportionate to the matters in issue; and
2. resolve any doubt which it may have as to whether costs were reasonably incurred or reasonable and proportionate in amount in favour of the paying party.

Where the amount of costs is to be assessed on the indemnity basis, the Court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

Where:

1. the Court makes an order about costs without indicating the basis on which the costs are to be assessed; or
2. the Court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis;

the costs will be assessed on the standard basis.

Factors to be taken into account in deciding the amount of costs

The Court is to have regard to all the circumstances in deciding whether costs were:

1. if it is assessing costs on the standard basis:
   1. proportionately and reasonably incurred; and
   2. were proportionate and reasonable in amount; or
2. if it is assessing costs on the indemnity basis:
   1. unreasonably incurred; or
   2. unreasonable in amount.

In particular, the Court must give effect to any orders which have already been made.

The Court must also have regard to:

1. the conduct of all the parties, including in particular:
   1. conduct before, as well as during, the proceedings; and
   2. the efforts made, if any, before and during the proceedings in order to try to resolve the dispute;
2. the amount or value of any money or property involved;
3. the importance of the matter to all the parties;
4. the particular complexity of the matter or the difficulty or novelty of the questions raised;
5. the skill, effort, specialised knowledge and responsibility involved;
6. the time spent on the case; and
7. the place where and the circumstances in which work or any part of it was done.

In applying the test of proportionality the Court will have regard to Rule 1.6(3). The relationship between the total of the costs incurred and the financial value of the claim may not be a reliable guide. A fixed percentage cannot be applied in all cases to the value of the claim in order to ascertain whether or not the costs are proportionate.

In any proceedings there will be costs which will inevitably be incurred and which are necessary for the successful conduct of the case. Legal representatives are not required to conduct litigation at rates which are uneconomic. Thus in a modest claim the proportion of costs is likely to be higher than in a large claim, and may even equal or possibly exceed the amount in dispute.

Where a trial takes place, the time taken by the Court in dealing with a particular issue may not be an accurate guide to the amount of time properly spent by the legal or other representatives in preparation for the trial of that issue.

Fixed costs

A party may recover the fixed costs specified in Part 39 in accordance with that Part.

Procedure for assessing costs

Where the Court orders a party to pay costs to another party (other than fixed costs) it may either:

1. make an immediate assessment of the costs; or
2. order detailed assessment of the costs;

unless any Rule, Practice Direction or other enactment provides otherwise.

Whenever the Court makes an order about costs which does not provide for fixed costs to be paid, the Court should consider whether to make an immediate assessment of costs.

The general rule is that the Court should make an immediate assessment of the costs:

1. at the conclusion of any hearing, which has lasted no more than one day, in which case the order will deal with the costs of the application or matter to which the hearing related. If this hearing disposes of the claim, the order may deal with the costs of the whole claim;
2. in hearings in the Court of Appeal to which Rule 44.165 applies;

unless there is good reason not to do so e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with on the material available or there is insufficient time to carry out an immediate assessment.

If an immediate assessment of costs is appropriate but the Court awarding costs is unable to do so on the day, the Court will give directions as to a further hearing before the same Judge.

Where the parties agree an order without the need for any party to attend, the parties must agree a figure for costs to be inserted in the agreed order or agree that there should be no order for costs.

It is the duty of the parties and their legal representatives to assist the Judge in making an immediate assessment of costs in any case to which Rule 38.30 applies, in accordance with Rules 38.34 to 38.36.

Each party who intends to claim costs must prepare a written statement of the costs he intends to claim showing separately in the form of a schedule:

1. the number of hours to be claimed;
2. the hourly rate to be claimed;
3. the qualifications and seniority of fee earner;
4. the amount and nature of any disbursement to be claimed;
5. the amount of the legal representative's costs to be claimed for attending or appearing at the hearing; and
6. any tax to be claimed on these amounts.

The statement of costs should follow as closely as possible Form P38/01 and must be signed by the party or his legal representative.

The statement of costs must be filed at Court and copies of it must be served on any party against whom an order for payment of those costs is intended to be sought. The statement of costs should be filed and the copies of it should be served as soon as possible and in any event not less than 24 hours before the date fixed for the hearing.

The failure by a party, without reasonable excuse, to comply with Rules 38.33 to 38.36 will be taken into account by the Court in deciding what order to make about the costs of the claim, hearing or application, and about the costs of any further hearing or detailed assessment hearing that may be necessary as a result of that failure.

The Court will not make an immediate assessment of the costs of a receiving party who is a child or patient unless the legal representative acting for the child or patient has waived the right to further costs.

The Court may make an immediate assessment of costs payable by a child or patient.

Time for complying with an order for costs

A party must comply with an order for the payment of costs within 14 days of:

1. the date of the judgment or order if it states the amount of those costs;
2. if the amount of those costs (or part of them) is decided later in accordance with Part 40, the date of the certificate which states the amount; or
3. in either case, such later date as the Court may specify.

Cases where costs orders will be considered to have been made

Where a right to costs arises under:

1. Rule 4.31 (defendant's right to costs where claim struck out for nonpayment of fees);
2. Rules 32.28 and 32.29 (claimant's entitlement to costs where a Part 32 offer is accepted); or
3. Rules 34.15 and 34.16 (defendant's right to costs where claimant discontinues);

a costs order will have been made on the standard basis.

Interest on the costs deemed to have been ordered under Rule 38.41 shall begin to run from the date on which the event which gave rise to the entitlement to costs occurred.

Costs-only proceedings

Rules 38.44 to 38.53 set out a procedure which may be followed where:

1. the parties to a dispute have reached an agreement on all issues (including which party is to pay the costs) which is made or confirmed in writing; but
2. they have failed to agree the amount of those costs; and
3. no proceedings have been started.

Either party to the agreement may start proceedings under Rules 38.44 to 38.53 by issuing a claim form in accordance with Part 8.

The claim form must:

1. identify the claim or dispute to which the agreement to pay costs relates;
2. state the date and terms of the agreement on which the claimant relies;
3. set out or have attached to it a draft of the order which the claimant seeks;
4. state the amount of the costs claimed; and,
5. state whether the costs are claimed on the standard or indemnity basis. If no basis is specified the costs will be treated as being claimed on the standard basis.

In proceedings to which Rules 38.44 to 38.53 apply the Court:

1. may:
   1. make an order for costs to be determined by detailed assessment; or
   2. dismiss the claim; and
2. must dismiss the claim if it is opposed.

For the purposes of Rule 38.46(2):

1. a claim will be treated as opposed if the defendant files an acknowledgment of service stating that he intends to contest the making of an order for costs or to seek a different remedy; and
2. a claim will not be treated as opposed if the defendant files an acknowledgment of service stating that he disputes the amount of the claim for costs.

An order dismissing the claim will be made as soon as an acknowledgment of service opposing the claim is filed. The dismissal of a claim under Rule 38.46(2) does not prevent the claimant from issuing another claim form under Part 7 or Part 8 based on the agreement or alleged agreement to which the proceedings under this rule related.

The evidence to be filed and served with the claim form under Rule 8.23 must include copies of the documents on which the claimant relies to prove the defendant's agreement to pay costs.

The Registrar has jurisdiction to hear and decide any issue which may arise in a claim issued under Rules 38.44 to 38.53 irrespective of the amount of the costs claimed or of the value of the claim to which the agreement to pay costs relates.

When the time for filing the defendant's acknowledgement of service has expired, the claimant may by letter request the Court to make an order in the terms of his claim, unless the defendant has filed an acknowledgement of service stating that he intends to contest the claim or to seek a different order.

An order for costs made under Rule 38.50 will be treated as an order for the amount of costs to be decided by a detailed assessment.

In cases in which an additional liability is claimed, regard should be had to the time when and the extent to which the claim has been settled and to the fact that the claim has been settled without the need to commence proceedings.

Nothing in Rules 38.44 to 38.53 prevents a person from issuing a claim form under Part 7 or Part 8 to sue on an agreement made in settlement of a dispute where that agreement makes provision for costs, nor from claiming in that case an order for costs or a specified sum in respect of costs.

Special situations

Where the Court makes an order which does not mention costs:

1. subject to Rules 38.56 and 38.57, the general rule is that no party is entitled to costs in relation to that order; but
2. this does not affect any entitlement of a party to recover costs out of a fund held by him as trustee or personal representative, or pursuant to any lease, mortgage or other security.

Where the Court makes:

1. an order granting permission to appeal;
2. an order granting permission to apply for judicial review; or
3. any other order or direction sought by a party on an application without notice;

and its order does not mention costs, it will be considered to include an order for applicant's costs in the case.

Any party affected by an order for costs under Rule 38.56 may apply at any time to vary the order.

The Court hearing an appeal may, unless it dismisses the appeal, make orders about the costs of the proceedings giving rise to the appeal as well as the costs of the appeal.

Court's powers in relation to misconduct

The Court may, in connection with an immediate or detailed assessment, make an order under Rule 38.60 where:

1. a party or his legal representative fails to comply with a Rule, Practice Direction or Court order; or
2. it appears to the Court that the conduct of a party or his legal representative, before or during the proceedings which gave rise to the assessment proceedings, was unreasonable or improper.

Where Rule 38.59 applies, the Court may:

1. disallow all or part of the costs which are being assessed; or
2. order the party at fault or his legal representative to pay costs which he has caused any other party to incur.

Where:

1. the Court makes an order under Rule 38.60 against a legally represented party; and
2. the party is not present when the order is made;

the party's legal representative must notify his client in writing of the order no later than 7 days after the legal representative receives notice of the order and either in the order under Rule 38.60 or in a subsequent order, require the legal representative to produce to the Court evidence that he took reasonable steps to do so.

Before making an order under Rule 38.60 the Court must give the party or legal representative in question a reasonable opportunity to attend a hearing to give reasons why it should not make such an order.

Conduct before or during the proceedings which gave rise to the assessment which is unreasonable or improper includes steps which are calculated to prevent or inhibit the Court from furthering the Overriding Objective.

Production of documents and inspection of property before commencement or against a non-party

Rule 38.65 applies where a person applies:

1. for an order under:

   1. Rule 25.1(9); or

   2. Rules 28.47 to 28.50;

      which give the Court powers exercisable before commencement of proceedings; or

2. for an order under;

   1. Rule 25.1(10); or
   2. Rules 28.51 to 28.54;

   which give the Court power to make an order against a non-party for disclosure of documents, inspection of property etc.

The general rule is that the Court will award the person against whom the order is sought his costs:

1. of the application; and
2. of complying with any order made on the application.

The Court may however make a different order, having regard to all the circumstances, including the extent to which it was reasonable for the person against whom the order was sought to oppose the application.

Costs orders in favour of or against non-parties

Where the Court is considering whether to exercise its power to make a costs order in favour of or against a person who is not a party to proceedings:

1. that person must be added as a party to the proceedings for the purposes of costs only; and
2. he must be given a reasonable opportunity to attend a hearing at which the Court will consider the matter further.

Rule 38.67 does not apply:

1. where the Court is considering whether to make a wasted costs order; and
2. in proceedings to which Rule 38.65 applies.

Amount of costs where costs are payable pursuant to a contract

Where the Court assesses (whether by the immediate or detailed procedure) costs which are payable by the paying party to the receiving party under the terms of a contract, the costs payable under those terms are, unless the contract expressly provides otherwise, to be presumed to be costs which:

1. have been reasonably incurred; and
2. are reasonable in amount, and the Court will assess them accordingly.

Rule 38.69 does not apply where the contract is between a legal representative and his client.

Limitations on court's power to award costs in favour of trustee or personal representative

Rules 38.72 and 38.73 apply where:

1. a person is or has been a party to any proceedings in the capacity of trustee or personal representative (“person representing his estate”); and
2. Rule 38.69 does not apply.

The general rule is that he is entitled to be paid the costs of those proceedings, insofar as they are not recovered from or paid by any other person, out of the relevant trust fund or estate.

Where he is entitled to be paid any of those costs out of the fund or estate, those costs will be assessed on the indemnity basis.

Costs where money is payable by or to a child or patient

Rule 38.75 applies to any proceedings where a party is a child or patient and:

1. money is ordered or agreed to be paid to, or for the benefit of, that party; or
2. money is ordered to be paid by him or on his behalf.

The general rule is that:

1. the Court must order a detailed assessment of the costs payable by, or out of money belonging to, any party who is a child or patient; and
2. on an assessment under (1), the Court must also assess any costs payable to that party in the proceedings, unless the Court has issued a default costs certificate in relation to those costs under Part 40.
3. The Court need not order detailed assessment of costs:
   1. where there is no need to do so to protect the interests of the child or patient or his estate;
   2. where another party has agreed to pay a specified sum in respect of the costs of the child or patient and the legal representative acting for the child or patient has waived the right to claim further costs;
   3. where the Court has decided the costs payable to the child or patient by way of immediate assessment and the legal representative acting for the child or patient has waived the right to claim further costs; or
   4. where an insurer or other person is liable to discharge the costs which the child or patient would otherwise be liable to pay to his legal representative and the Court is satisfied that the insurer or other person is financially able to discharge those costs.
4. Where:
   1. a claimant is a child or patient; and
   2. a detailed assessment has taken place under this Rule the only amount payable by the child or patient is the amount which the Court certifies as payable.

Costs where the Court has made a Group Litigation Order

Rules 38.77 to 38.82 apply where the Court has made a Group Litigation Order (‘GLO’).

In Rules 38.78 to 38.82:

1. ‘individual costs’ means costs incurred in relation to an individual claim on the group register;
2. ‘common costs’ means:
   1. costs incurred in relation to the GLO issues;
   2. individual costs incurred in a claim while it is proceeding as a test claim; and
   3. costs incurred by the lead legal representative in administering the group litigation;
3. ‘group litigant’ means a claimant or defendant, as the case may be, whose claim is entered on the group register.

Unless the Court orders otherwise, any order for common costs against group litigants imposes on each group litigant several liability for an equal proportion of those common costs.

The general rule is that where a group litigant is the paying party, he will, in addition to any costs he is liable to pay to the receiving party, be liable for:

1. the individual costs of his claim; and
2. an equal proportion, together with all the other group litigants, of the common costs.

Where the Court makes an order about costs in relation to any application or hearing which involved:

1. one or more GLO issues; and
2. issues relevant only to individual claims;

the Court will direct the proportion of the costs that is to relate to common costs and the proportion that is to relate to individual costs.

Where common costs have been incurred before a claim is entered on the group register, the Court may order the group litigant to be liable for a proportion of those costs.

Where a claim is removed from the group register, the Court may make an order for costs in that claim which includes a proportion of the common costs incurred up to the date on which the claim is removed from the group register.

Personal liability of legal representative for costs — Wasted costs orders

The Court shall have power to disallow or, (as the case may be) order the legal or other representative concerned to meet, the whole of any wasted costs or such part of them as may be determined.

The Court must give the legal representative a reasonable opportunity to attend a hearing to give reasons why it should not make such an order.

When the Court makes a wasted costs order, it must:

1. specify the amount to be disallowed or paid; or
2. direct the Registrar to decide the amount of costs to be disallowed or paid.

The Court may direct that notice must be given to the legal representative's client, in such manner as the Court may direct:

1. of any hearing under Rule 38.84; or
2. of any order made against his legal representative.

The Court may refer the question of wasted costs to the Registrar instead of making a wasted costs order.

Costs order in favour of a party represented pro bono

Where a party (“the claiming party”) is represented by a law firm acting pro bono, the law firm may apply for an order that the other party (“the paying party”) make a payment in respect of the costs of legal services provided to the pro bono litigant at no charge (“a pro bono costs order”). The Court shall consider the application and assess the costs as if the claiming party were obliged to pay the fees of the law firm at the normal commercial rates charged by the law firm.

Where the Court makes a pro bono costs order, such costs shall be assessed summarily by a Judge or the Registrar, unless a detailed assessment is necessary.

Any costs payable pursuant to a pro bono costs order shall be paid to an account (“the Account”) established by the Chief Justice by Practice Direction, for the following purposes:

1. Scholarships providing financial support to Emirati students studying law in the Emirate of Dubai and in need of such financial support;
2. The provision of a Pro Bono Clinic within the DIFC Courts;
3. The DIFC Courts Academy; and/or
4. Such other purposes as the Chief Justice may direct or order from time to time.

The Account shall be administered by the signatories of the Account who are the Chief Justice, the Deputy Chief Justice, the Registrar and the Deputy Registrar in accordance with the purposes of the Account.

Any individual, group or organisation may apply to the Account by way of letter stating the extent of support that is required and the reasons for requiring such support to the designated Pro Bono Programme Leader at the DIFC Courts Registry.

All applications will be determined by the signatories of the Account. The Chief Justice will have the final determination on such applications. When making a decision on the allocation of funds, the signatories will have an absolute discretion and the signatories shall not accept any duty or liability to any individual, group or organisation seeking a distribution.

The allocation of funds will be listed in available records, on the Court website and in its Annual Report.

Where a pro bono costs order is sought, to assist the Court in making an immediate assessment of the amount payable to the Account, the pro bono litigant must prepare, file and serve in accordance with Rules 38.34 to 38.36 a written statement of the sum which the pro bono law firm would have claimed for legal representation had it not been provided free of charge.

If a detailed assessment of costs is required then it shall be undertaken in accordance with Part 40 in the usual manner and the costs of the detailed assessment proceedings shall also be awarded to the Account.

In proceedings where a party is represented pro bono the Court, wherever possible, shall reserve the issue of costs until the conclusion of the trial or the final hearing. At the conclusion of the trial or the final hearing, a single costs order may be made which reflects the overall justice of the case.

Costs-free trials

A pro bono litigant may be entitled to a costs-free trial, where the pro bono litigant will not be obliged to meet the legal costs of the opposing party or parties even if the pro bono litigant is unsuccessful. The pro bono litigant will only be entitled to a costs-free trial once an application has been approved by the DIFC Courts Pro Bono Panel (the ‘Panel’).

Applications for a costs-free trial should, save in exceptional circumstances, be submitted before the trial commences. Only those applications qualifying for pro bono assistance will be forwarded to the Panel for its consideration by the designated Programme Leader (chosen by the Chief Justice and responsible for all aspects of the operation and administration of the Pro Bono Programme).

Applications for a costs-free trial:

1. should be supported by the pro bono lawyer of the applicant. The pro bono lawyer must certify that in their opinion there is a reasonable prospect of the applicant's case succeeding; and
2. will be forwarded to the opposing party's or parties' lawyers for an opportunity to respond to the application and to provide any reasons why the applicant should not be permitted a costs-free trial.

In determining the application, the Panel shall consider whether the applicant meets the threshold of:

1. financial inability;
2. case merit; and
3. such other criteria as the Panel may consider relevant from time to time.

The Panel has absolute discretion as to whether an applicant meets the threshold for a costs-free trial. The Panel may decide that the applicant shall be entitled to costs protection in respect of any stage of proceedings, including any appeal.

The designated Programme Leader shall ensure that a decision of the Panel that an applicant is entitled to a costs-free trial be delivered in a Court Order.

A party may only appeal against an Order that an applicant is entitled to a costs-free trial:

1. to a judge of the Court; and
2. either prior to or during the course of the trial, save where, in exceptional circumstances, new information has come to light after the trial which affects or may affect the pro bono litigant's eligibility for a costs-free trial.

A pro bono litigant may at any time apply to the designated Programme Leader to have the Court fees suspended until the end of the case. The designated Programme Leader has absolute discretion in determining whether Court fees are to be suspended, and to what extent.

Where the Court makes an order under Rule 38.88, the order must specify that the payment by the paying party must be made to the Account.

The administrative costs and other expenses related to the office and to the management and investment of the fund will be borne by the Account.

Part 39 - Fixed costs

Scope of this Part

This Part sets out the amounts which, unless the Court orders otherwise, are to be allowed in respect of legal representatives' charges in the cases to which this Part applies.

This Part applies where:

1. the only claim is a claim for a specified sum of money where the value of the claim exceeds US$50 but does not exceed US$50,000 and:
   1. judgment in default is obtained under Rule 13.7;
   2. judgment on admission is obtained under Rule 15.15;
   3. judgment on admission on part of the claim is obtained under Rule 15.18;
   4. immediate judgment is given under Part 24;
   5. the Court has made an order to strike out a defence under Rule 4.16(1) as disclosing no reasonable grounds for defending the claim; or
   6. Rule 39.7 or 39.8 applies;
2. the only claim is a claim where the Court gave a fixed date for the hearing when it issued the claim and judgment is given for the delivery of goods, and the value of the claim exceeds US$50 but does not exceed US$50,000; or
3. a judgment creditor has taken steps under Parts 45 to 50 to enforce a judgment or order.

Any appropriate Court fee will be allowed in addition to the costs set out in this Part.

The claim form may include a claim for fixed commencement costs.

Amount of fixed commencement costs in a claim for the recovery of money or goods

The amount of fixed commencement costs in a claim to which Rule 39.2(1) or 39.2(2) applies:

1. shall be calculated by reference to Table 1; and
2. the amount claimed, or the value of the goods claimed if specified, in the claim form is to be used for determining the band in Table 1 that applies to the claim.

The amounts shown in Table 3 are to be allowed in addition, if applicable.

When defendant only liable for fixed commencement costs

Where:

1. the only claim is for a specified sum of money; and
2. the defendant pays the money claimed within 14 days after service of particulars of claim on him, together with the fixed commencement costs stated in the claim form,

the defendant is not liable for any further costs unless the Court orders otherwise.

Costs on entry of judgment in a claim for the recovery of money or goods

Where:

1. the claimant has claimed fixed commencement costs under Rule 39.5; and

2. judgment is entered in a claim to which Rule 39.2(1) or 39.2(2) applies in the circumstances specified in Table 2, the amount to be included in the judgment for the claimant's legal representatives' charges is the total of:

   1. the fixed commencement costs; and

   2. the relevant amount shown in Table 2.

      

Miscellaneous fixed costs

Table 3 shows the amount to be allowed in respect of legal representatives' charges in the circumstances mentioned.

Fixed enforcement costs

Table 4 shows the amount to be allowed in respect of legal representatives' costs in the circumstances mentioned. The amounts shown in Table 3 are to be allowed in addition, if applicable.

Part 40 - Procedure for detailed assessment of costs

I - General rules about detailed assessment

Time when detailed assessment may be carried out

The general rule is that the costs of any proceedings or any part of the proceedings are not to be assessed by the detailed procedure until the conclusion of the proceedings. However the Court may order them to be assessed immediately.

No stay of detailed assessment where there is an appeal

Detailed assessment is not stayed pending an appeal unless the Court so orders.

Authorised Court Officer

The Registrar or a judicial officer of the Court appointed for the purpose by the Chief Justice under Article 14 of the Court Law ( Article 14 of DIFC Law No. 10/2004 (opens in a new tab)) (referred to as “an authorised Court Officer” in this Part) has all the powers of the Court when making a detailed assessment, except:

1. power to make a wasted costs order;
2. power to make an order under:
   1. Rule 38.60 (powers in relation to misconduct); and
   2. Rule 40.12 (sanction for delay in commencing detailed assessment proceedings).

II - Costs payable by one party to another — commencement of detailed assessment proceedings

Application of this section

This section of Part 40 applies where the Registrar is to make a detailed assessment of costs which are payable by one party to another.

Commencement of detailed assessment proceedings

Detailed assessment proceedings are commenced by the receiving party serving on the paying party:

1. notice of commencement in Form P40/01; and
2. a copy of the bill of costs.

The receiving party must also serve a copy of the notice of commencement and the bill on any other relevant person including:

1. any person who has taken part in the proceedings which gave rise to the assessment and who is directly liable under an order for costs made against him;
2. any person who has given to the receiving party notice in writing that he has a financial interest in the outcome of the assessment and wishes to be a party accordingly; and/or
3. any other person whom the Court orders to be treated as such.

Where a party is unsure whether a person is or is not a relevant person, that party may apply to the appropriate office for directions.

The Court will generally not make an order that the person in respect of whom the application is made will be treated as a relevant person, unless within a specified time he applies to the Court to be joined as a party to the assessment proceedings in accordance with Part 20.

A person on whom a copy of the notice of commencement is served under Rule 40.6 is a party to the detailed assessment proceedings (in addition to the paying party and the receiving party).

Period for commencing detailed assessment proceedings

The following table shows the period for commencing detailed assessment proceedings.

Sanction for delay in commencing detailed assessment proceedings

Where the receiving party fails to commence detailed assessment proceedings within the period specified:

1. in Rule 40.10; or
2. by any direction of the Court;

the paying party may apply for an order requiring the receiving party to commence detailed assessment proceedings within such time as the Court may specify.

On an application under Rule 40.11, the Court may direct that, unless the receiving party commences detailed assessment proceedings within the time specified by the Court, all or part of the costs to which the receiving party would otherwise be entitled will be disallowed.

If:

1. the paying party has not made an application in accordance with Rule 40.11; and
2. the receiving party commences the proceedings later than the period specified in Rule 40.10;

the Court may disallow all or part of the interest otherwise payable to the receiving party under Article 39 of the Court Law, ( Article 39 of DIFC Law No. 10/2004 (opens in a new tab)) but must not impose any other sanction except in accordance with Rule 38.60.

Points of dispute and consequence of not serving

The paying party and any other party to the detailed assessment proceedings may dispute any item in the bill of costs by serving points of dispute on:

1. the receiving party; and
2. every other party to the detailed assessment proceedings.

The period for serving points of dispute is 21 days after the date of service of the notice of commencement.

If a party serves points of dispute after the period set out in Rule 40.15, he may not be heard further in the detailed assessment proceedings unless the Court gives permission.

The receiving party may file a request for a default costs certificate if:

1. the period set out in Rule 40.15 for serving points of dispute has expired; and
2. he has not been served with any points of dispute.

If any party (including the paying party) serves points of dispute before the issue of a default costs certificate the Court may not issue the default costs certificate.

Procedure where costs are agreed

If the paying party and the receiving party agree the amount of costs, either party may apply for a costs certificate (either interim or final) in the amount agreed.

III - Costs payable by one party to another — default provisions

Default costs certificate

Where the receiving party is permitted by Rule 40.17 to obtain a default costs certificate, he does so by filing a request Form P40/02.

A default costs certificate will include an order to pay the costs to which it relates.

Where a receiving party obtains a default costs certificate, the costs payable to him for the commencement of detailed assessment proceedings shall be $US160.

Setting aside default costs certificate

The Court must set aside a default costs certificate if the receiving party was not entitled to it.

In any other case, the Court may set aside or vary a default costs certificate if it appears to the Court that there is some good reason why the detailed assessment proceedings should continue.

Where:

1. the receiving party has purported to serve the notice of commencement on the paying party;

2. a default costs certificate has been issued; and

3. the receiving party subsequently discovers that the notice of commencement did not reach the paying party at least 21 days before the default costs certificate was issued;

   the receiving party must:

   1. file a request for the default costs certificate to be set aside; or
   2. apply to the Court for directions.

Where Rule 40.25 applies, the receiving party may take no further step in:

1. the detailed assessment proceedings; or
2. the enforcement of the default costs certificate;

until the certificate has been set aside or the Court has given directions.

IV - Costs payable by one party to another — procedure where points of dispute are served

Optional reply

Where any party to the detailed assessment proceedings serves points of dispute, the receiving party may serve a reply on the other parties to the assessment proceedings.

He may do so within 21 days after service on him of the points of dispute to which his reply relates.

Detailed assessment hearing

Where points of dispute are served in accordance with this Part, the receiving party must file a request for a detailed assessment hearing.

He must file the request within 3 months of the expiry of the period for commencing detailed assessment proceedings as specified:

1. in Rule 40.10; or
2. by any direction of the Court.

Where the receiving party fails to file a request in accordance with Rule 40.30, the paying party may apply for an order requiring the receiving party to file the request within such time as the Court may specify.

On an application under Rule 40.31, the Court may direct that, unless the receiving party requests a detailed assessment hearing within the time specified by the Court, all or part of the Costs to which the receiving party would otherwise be entitled will be disallowed.

If:

1. the paying party has not made an application in accordance with Rule 40.31; and

2. the receiving party files a request for a detailed assessment hearing later than the period specified in Rule 40.30;

   the Court may disallow all or part of the interest otherwise payable to the receiving party under Article 39 of the Court Law, ( Article 39 of DIFC Law No. 10/2004 (opens in a new tab)) but must not impose any other sanction except in accordance with Rule 38.60.

No party other than:

1. the receiving party;
2. the paying party; and
3. any party who has served points of dispute under 40.14;