This order clarifies the boundaries of document disclosure in the DIFC, specifically addressing the impermissibility of using production requests to compel the creation of new evidence or the involvement of third parties.
What specific document production disputes arose between Anoop Kumar Lal, Paul Patrick Hennessy, and Donna Benton in CFI 005/2021?
The litigation involves a dispute between the Claimants, Anoop Kumar Lal and Paul Patrick Hennessy, and the Defendant, Donna Benton. The parties engaged in a contentious exchange of Requests to Produce under the Rules of the DIFC Courts (RDC). The Claimants sought five categories of documents, while the Defendant requested eleven. The dispute centered on whether the requested items were existing documents within the scope of RDC Part 28 or if the requests were procedurally improper attempts to force the creation of new records.
Regarding the Claimants' requests, the Defendant objected to items 3, 4, and 5, arguing that they fell outside the scope of permissible disclosure. Justice Roger Giles upheld these objections, noting that the requests were fundamentally flawed in their nature. As the court observed:
These are not requests for documents within RDC Part 28. They require that the Defendant create documents by way of affidavit, or that a third party provide a document or documents.
Conversely, the Defendant’s requests were met with a blanket assertion by the Claimants that they lacked access to the relevant company emails of Entertainer FZ LLC. The court found this response insufficient, necessitating a formal Document Production Order to ensure the Claimants properly verified their lack of possession, custody, or control.
Which judge presided over the document disclosure hearing in the DIFC Court of First Instance on 31 August 2021?
The matter was heard and determined by Justice Roger Giles, sitting in the DIFC Court of First Instance. The order was issued on 31 August 2021, following a review of the parties' respective requests and objections filed in mid-August 2021.
How did the Claimants and the Defendant justify their respective positions on document production in CFI 005/2021?
The Claimants argued that they were unable to comply with the Defendant’s eleven categories of requests because they no longer possessed access to the email systems of Entertainer FZ LLC. They maintained that the documents were effectively beyond their reach, and thus, they could not produce them. The court, however, viewed this as an insufficient explanation, noting that the Claimants' response failed to address the full scope of "possession, custody or control" as required by the RDC.
The Defendant, in turn, objected to the Claimants' requests for documents 3, 4, and 5 on the basis that they were not requests for existing documents at all. The Defendant contended that the Claimants were improperly attempting to use the disclosure process to force the creation of new documents via affidavit or to compel third-party production, which is not the function of RDC Part 28. The court agreed with the Defendant, finding that the requests sought to impose obligations on the Defendant that exceeded the procedural requirements of the DIFC rules.
What is the doctrinal distinction between a valid request for production and an improper request for the creation of evidence under RDC Part 28?
The core legal question addressed by the court was whether a party can utilize the RDC Part 28 disclosure mechanism to compel an opponent to generate new information or to source documents from third parties. The court had to determine if the requests were for "documents" as defined by the rules or if they were disguised interrogatories or requests for the creation of evidence.
The court established that RDC Part 28 is strictly limited to the production of existing documents within a party's possession, custody, or control. Requests that require a party to draft an affidavit to "create" a document, or requests that effectively demand that a party act as an intermediary to secure documents from third parties, fall outside the scope of the rule. This distinction serves to prevent the disclosure process from being used as a tool for discovery beyond the scope of existing, relevant evidence.
How did Justice Roger Giles apply the test for document production when evaluating the Claimants' assertion of lack of access to company emails?
Justice Giles applied a rigorous standard to the Claimants' claim that they lacked access to Entertainer FZ LLC emails. He reasoned that simply stating a lack of access was insufficient when the nature of the alleged conduct made it highly probable that such documents existed and were, at one point, within the Claimants' control. The court emphasized that the obligation to disclose extends to documents that were previously in a party's possession, custody, or control.
The court required the Claimants to provide formal verification of their position through Document Production Statements. As the court noted:
A Document Production Order is therefore made, in order that there be such confirmation or that on further consideration documents within the categories are produced.
This reasoning ensures that parties cannot evade disclosure obligations through vague assertions of "lack of access" without providing the court with the necessary formal confirmation that a reasonable search has been conducted and that the documents are truly unavailable.
Which specific RDC rules and procedural requirements governed the court's decision in CFI 005/2021?
The court’s decision was primarily governed by RDC Part 28, which outlines the rules for the production of documents in the DIFC. Specifically, the court relied on the principles inherent in RDC 28.28, which provides the framework for objections to requests to produce. The court also referenced the Case Management Order of H.E. Justice Nassir Al Nasser dated 14 July 2021, which set the timeline for the disclosure process.
The court’s order also highlighted the requirement for "Document Production Statements" to verify compliance. This procedural step is essential under the RDC to ensure that parties take their disclosure obligations seriously and provide a sworn or formal account of their search efforts.
How did the court treat the Claimants' request for "Completion Statements" and the Defendant's response regarding their existence?
The court addressed the Claimants' request for "Completion Statements" by accepting the Defendant's assertion that such documents did not exist. Justice Giles noted that the Defendant’s response was clear and that there was no evidence to suggest otherwise. The court’s treatment of this issue reinforces the principle that a party cannot be compelled to produce a document that does not exist.
As the court stated:
The documents in the Document 2 category are to be produced, with redaction, save for the Completion Statements as to which the response is that they do not exist.
This ruling demonstrates the court's pragmatic approach: if a party confirms the non-existence of a document, and there is no reason to doubt that confirmation, the court will not issue an order for its production.
What was the final disposition of the court regarding the document production requests in CFI 005/2021?
The court granted the Defendant’s request for a Document Production Order, requiring the Claimants to conduct a reasonable search for the eleven categories of documents requested. The Claimants were ordered to produce any located documents or, if the documents were no longer in their possession, custody, or control, to explain what happened to them.
Regarding the Claimants' requests, the court denied the request for documents 3, 4, and 5, agreeing with the Defendant that they were improper. The court also reserved liberty to apply regarding redaction disputes for Document 2. The Claimants were ordered to file and serve their Document Production Statements within 14 days of the order.
What are the practical implications for DIFC practitioners regarding the drafting of Requests to Produce?
Practitioners must ensure that all Requests to Produce are strictly limited to existing documents. Attempting to use the disclosure process to force an opponent to create new records, such as through an affidavit, or to act as a conduit for third-party documents, will be rejected by the court.
Furthermore, when a party claims that documents are unavailable, they must be prepared to support this assertion with a formal, verified statement. A mere statement in correspondence is unlikely to satisfy the court if the circumstances suggest that the documents should have been within the party's control. Practitioners should anticipate that the court will require a "reasonable search" and formal confirmation of the results of that search, as seen in the ANOOP KUMAR LAL v DONNA BENTON [2021] DIFC CFI 005 — Procedural transition from Part 8 to Part 7 (18 March 2021) order.
Where can I read the full judgment in Anoop Kumar Lal v Donna Benton [2021] DIFC CFI 005?
The full text of the Document Disclosure Order can be accessed via the DIFC Courts website at: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-005-2021-1-anoop-kumar-lal-2-paul-patrick-hennessy-v-donna-benton-1 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-005-2021_20210831.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific case law precedents were cited in this order. |
Legislation referenced:
- RDC Part 28 (Document Production)
- RDC 28.28 (Objections to Requests to Produce)