Justice Sir Jeremy Cooke denies the Fourth and Fifth Defendants' attempt to delay a critical jurisdiction hearing, reinforcing the Court's strict control over procedural timetables and the limited scope of cross-examination in forum conveniens disputes.
Why did the Fourth and Fifth Defendants in CFI 009/2023 seek to adjourn the jurisdiction hearing scheduled for 7 September 2023?
The dispute arises from complex litigation involving Bank Sarasin-Alpen (ME) Limited (in liquidation) and its Official Liquidator, Mr. Shahab Haider, against several defendants, including Mr. Elie Vivien Sassoon, Mr. Stephane Emile Astruc, Mr. Edmond Carton, Bank J Safra Sarasin Limited, and Bank J. Safra Sarasin Asset Management (Middle East) Ltd. The Fourth and Fifth Defendants filed an application on 4 and 9 August 2023 seeking to adjourn the jurisdiction hearing and vary the existing procedural timetable.
The Court summarily rejected this request, citing the fact that the original directions were mutually agreed upon by the parties. Justice Sir Jeremy Cooke emphasized that the court’s calendar and the established procedural flow must be respected to ensure the efficient administration of justice. As noted in the Court’s reasons:
The Fourth and Fifth Defendant’s Application for adjournment of the hearing and revision of the timetable leading to the hearing on 7 September 2023 is refused:
(a) for the reasons given by the Claimant in its letter of 10 August 2023.
Which judge presided over the application to vary the timetable in Bank Sarasin-Alpen v Mr Elie Vivien Sassoon?
The application was heard and determined by Justice Sir Jeremy Cooke in the DIFC Court of First Instance. The order was issued on 25 August 2023, following the Defendants' email applications sent to the Registry earlier that month.
What arguments did the Fourth and Fifth Defendants advance to justify their request for an adjournment and the cross-examination of Mr. Shahab Haider?
The Fourth and Fifth Defendants sought to disrupt the established timetable, arguing for an extension of time and the right to cross-examine the Official Liquidator, Mr. Shahab Haider. Their position was that additional time was required to prepare for the jurisdictional arguments and that the testimony of the Liquidator was essential to their case.
Conversely, the Claimants opposed the adjournment, maintaining that the previously agreed-upon directions were sufficient and that the Defendants' procedural maneuvers were unnecessary. The Court sided with the Claimants, noting that the Defendants failed to follow the Rules of the DIFC Courts (RDC) regarding the application for cross-examination. Justice Sir Jeremy Cooke clarified that even if the application had been procedurally compliant, it would have been denied on its merits, as the jurisdictional dispute focused on forum conveniens rather than factual disputes requiring the Liquidator’s testimony.
What was the precise legal question the Court had to answer regarding the admissibility of cross-examination in a jurisdictional challenge?
The Court was tasked with determining whether the cross-examination of a party—specifically the Official Liquidator—is a permissible or necessary component of a hearing dedicated to a forum conveniens challenge. The doctrinal issue centered on the scope of evidence required to establish whether the DIFC is the appropriate forum for the litigation. The Court had to decide if the Defendants’ request for cross-examination was a legitimate procedural step or an attempt to unnecessarily broaden the scope of a hearing that should be confined to jurisdictional and forum-related legal arguments.
How did Justice Sir Jeremy Cooke apply the doctrine of forum conveniens to reject the request for cross-examination?
Justice Sir Jeremy Cooke applied the principle that jurisdictional hearings, particularly those concerning forum conveniens, are intended to be focused, efficient, and limited to the relevant legal nexus. He reasoned that the introduction of cross-examination in such a context is generally inappropriate unless it is strictly necessary to resolve a specific, disputed factual issue that goes to the heart of the jurisdiction question.
The Court found that the Defendants’ application failed to meet the required threshold under the RDC. The reasoning was clear:
The application to cross examine Mr. Haider is refused as it was not made in accordance with the Rules. If the Defendants wished to cross examine Mr. Haider, they should have made a proper application supported by evidence, but such application would have been refused in any event because it is unnecessary and inappropriate on a jurisdictional application which is essentially concerned with forum conveniens.
Which specific RDC rules and procedural standards governed the Court’s refusal of the adjournment?
The Court’s decision was grounded in the inherent power of the DIFC Court to manage its own timetable and the specific requirements of the Rules of the DIFC Courts (RDC) regarding the submission of evidence and applications for cross-examination. By referencing the fact that the directions were "agreed between the parties," the Court invoked the principle of procedural finality. Furthermore, the Court noted that the Fifth Defendant’s application for relief from sanctions could be efficiently managed during the existing hearing window, reinforcing that the court’s schedule is not subject to unilateral variation by the parties.
How did the Court treat the proposed cross-examination of Swiss lawyers in the context of the jurisdictional dispute?
While the parties had reached a mutual agreement regarding the cross-examination of Swiss lawyers, the Court signaled that such an agreement does not automatically bind the bench. Justice Sir Jeremy Cooke noted that any such cross-examination would still require justification to the Court, which maintains a skeptical view of such procedures in jurisdictional disputes. As stated in the order:
Cross examination of Swiss lawyers has been agreed by the parties but will have to be justified to the Court which would ordinarily not allow for such cross examination on a jurisdictional issue of the kind in dispute.
What was the final disposition of the application and the order regarding costs?
The Court refused the application in its entirety. Consequently, the jurisdiction hearing remained fixed for 7 September 2023. Regarding costs, the Court ordered the Fourth and Fifth Defendants to bear the financial burden of the unsuccessful application. The order specified:
As the Application has failed, the Fourth and Fifth Defendants shall pay the costs of the Claimant on the Application to adjourn the hearing and vary the timetable, on the standard basis, to be the subject of assessment by the Registrar if not agreed, but are not to be assessed or paid until after determination of the jurisdiction application to be heard on 7 September 2023.
What are the wider implications for DIFC practitioners regarding the management of jurisdictional hearings?
Practitioners must anticipate that the DIFC Court will maintain a strict stance on procedural adherence, particularly regarding agreed-upon timetables. The case serves as a warning that attempts to adjourn hearings or introduce cross-examination in forum conveniens disputes will be met with rigorous scrutiny. Parties should ensure that any request for cross-examination is supported by robust evidence and strictly aligned with the RDC, as the Court is prepared to limit the time available for arguments to ensure the hearing proceeds as scheduled, regardless of whether parties reach a consensus on delays.
Where can I read the full judgment in Bank Sarasin-Alpen v Mr Elie Vivien Sassoon [2023] DIFC CFI 009?
The full order with reasons can be accessed via the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0092023-1-bank-sarasin-alpen-me-limited-liquidation-2-mr-shahab-haider-his-capacity-official-liquidator-bank-sarasin-alpen-m
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Al Khorafi v Bank Sarasin-Alpen | CFI 005/2016 | Referenced as a related matter in the consolidated procedural context. |
Legislation referenced:
- Rules of the DIFC Courts (RDC)
- DIFC Court Law (General procedural powers)