What are the primary disclosure disputes at stake in Bank Sarasin-Alpen v Mr Elie Vivien Sassoon [2024] DIFC CFI 009?
The lawsuit involves complex allegations arising from the liquidation of Bank Sarasin-Alpen (ME) Limited. The Claimants, including the Official Liquidator Georgina Marie Eason, are pursuing claims against former executives and associated corporate entities, including Mr Elie Vivien Sassoon, Mr Stephane Emile Astruc, Mr Edmond Carton, Bank J Safra Sarasin Limited, and J Safra Sarasin (Middle East) Limited. The dispute centers on the conduct of these parties during the bank's operation and subsequent insolvency.
Given the scale of the allegations, the litigation has necessitated rigorous document production. The parties have been locked in a process of defining the scope of discovery, specifically regarding which individuals' communications must be searched and the methodology for filtering these vast datasets. The court has intervened to ensure that the disclosure process does not stall the progress of the substantive claims. As noted in the recent order:
Paragraph 11 of the First CMC Order is varied to read: “Each of the parties shall provide disclosure in accordance with paragraph 11 of the April Order by 4pm on 31 December 2024”.
This extension reflects the complexity of the document review required for the ongoing proceedings. For further context on the procedural history of this matter, see BANK SARASIN-ALPEN v MR ELIE VIVIEN SASSOON [2023] DIFC CFI 009 — Procedural refusal of adjournment and cross-examination (25 August 2023).
Which judge presided over the second Case Management Conference in CFI 009/2023?
The second Case Management Conference (CMC) was presided over by Justice Sir Jeremy Cooke. The hearing took place on 23 September 2024 within the DIFC Court of First Instance. Justice Sir Jeremy Cooke has been the primary judicial figure overseeing the case management of this complex litigation, having previously issued the April Order and the First CMC Order, which established the foundational requirements for disclosure and procedural conduct in this matter.
What specific arguments were advanced by the parties regarding the identification of document custodians?
The parties, represented by their respective counsel, engaged in a detailed negotiation regarding the identification of "custodians"—the individuals whose electronic and physical records are subject to disclosure. The Claimants sought to ensure that all relevant personnel, particularly those involved in high-level decision-making or client management during the critical 2014-2015 period, were included in the search parameters.
The Defendants, conversely, sought to narrow the scope to avoid disproportionate administrative burdens. A specific point of contention involved Relationship Managers (RMs) who transitioned between institutions. The court ultimately mandated that the Fifth Defendant identify RMs previously employed by the Bank of Singapore who serviced clients of the First Claimant during the relevant period. This requirement ensures that the disclosure net captures potentially critical communications regarding client migration and internal bank policies during the period leading up to the liquidation.
What is the legal threshold for the court to intervene in keyword search disputes under the DIFC Rules of Court?
The court’s primary concern in this case is the efficient and fair administration of disclosure under the Rules of the DIFC Courts (RDC). The legal question the court had to address was whether the parties had reached a sufficient impasse regarding the technical methodology of discovery—specifically keyword search terms and date ranges—to warrant judicial intervention.
By setting a specific date for a remote hearing to resolve remaining disputes, the court is exercising its case management powers to prevent "discovery creep." The court must balance the need for comprehensive evidence against the principle of proportionality, ensuring that the search terms are not so broad as to be oppressive, nor so narrow as to exclude relevant evidence. The court’s role here is to act as an arbiter of the "reasonableness" of the proposed search parameters, ensuring that the disclosure process remains focused on the core issues of the litigation.
How did Justice Sir Jeremy Cooke structure the resolution of outstanding keyword search disputes?
Justice Sir Jeremy Cooke utilized a structured, phased approach to resolve the impasse regarding search terms. By mandating a meeting between the parties to discuss draft keywords and date ranges, the court forced a collaborative effort before the judicial hearing. This ensures that the court only adjudicates on truly irreconcilable differences, rather than minor technical disagreements. The court’s reasoning is rooted in the necessity of maintaining the trial schedule while ensuring both sides have access to the evidence required to prove their case. As stipulated in the order:
The parties shall meet to discuss the draft list of proposed keywords and date ranges on a date to be agreed in the week beginning 14 October 2024. 7.
This directive forces the parties to narrow their disagreements, effectively shifting the burden of resolution onto the parties themselves before the court intervenes.
Which specific DIFC Rules and prior orders govern the disclosure obligations in this case?
The disclosure obligations are primarily governed by the RDC Part 28 (Production of Documents) and the specific directions set out in the "April Order" (dated 30 April 2024) and the "First CMC Order" (dated 20 June 2024). These orders serve as the procedural bedrock for the current litigation. The court’s authority to vary these orders, as seen in the amendment of paragraph 11, is derived from the court's inherent case management powers under the RDC to manage the timetable of proceedings and ensure the "Overriding Objective" of the court is met—namely, to deal with cases justly and at a proportionate cost.
How did the court utilize the lists of custodians in the current case management framework?
The court utilized the lists of custodians provided in Appendix 1 (Claimants) and Appendix 2 (Defendants) as a definitive, court-approved scope for the disclosure exercise. By formally approving these lists, Justice Sir Jeremy Cooke has effectively "locked in" the scope of the search, preventing future arguments about whether a particular individual's files should be included.
The list of the Claimants’ custodians of documents to be searched in Appendix 1 to this Order is approved. 3. The list of the Defendants’ custodians of documents to be searched in Appendix 2 to this Order is approved. 4.
This approval serves as a procedural safeguard, ensuring that both sides have certainty regarding the volume and source of the documents they are expected to process and produce by the 31 December 2024 deadline.
What was the final disposition of the second Case Management Conference regarding costs and future hearings?
The court issued an Amended Case Management Order that finalized the disclosure timeline and set a clear roadmap for the remainder of the litigation. The court ordered that the costs of the Second CMC shall be "costs in the case," meaning they will be borne by the party that ultimately loses the litigation or as otherwise determined at the final judgment. Additionally, the court scheduled future Case Management Conferences for 25 March 2025 and 20 June 2025, ensuring that the court maintains active oversight of the proceedings.
What are the practical implications for practitioners managing large-scale disclosure in DIFC insolvency litigation?
This order highlights the importance of early and precise identification of document custodians in complex banking litigation. Practitioners must anticipate that the DIFC Court will not tolerate vague or open-ended disclosure processes. The court’s insistence on a collaborative meeting regarding keyword search terms, followed by a hard deadline for judicial determination, signals a preference for party-led resolution of technical discovery disputes.
Practitioners should note the court's willingness to include specific categories of employees—such as the RMs identified in paragraph 4—as a means of ensuring that the "truth" of the corporate conduct is revealed. Future litigants must be prepared to justify their search parameters and custodian lists with granular detail, as the court is actively managing the disclosure process to prevent delays. For further information on the consolidation of these claims, see BANK SARASIN-ALPEN v MR ELIE VIVIEN SASSOON [2024] DIFC CFI 009 — Consolidation of insolvency and Part 7 claims (07 February 2024).
Where can I read the full judgment in Bank Sarasin-alpen v Mr Elie Vivien Sassoon [2024] DIFC CFI 009?
The full text of the Amended Case Management Order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0092023-1-bank-sarasin-alpen-me-limited-liquidation-2-georgina-marie-eason-her-capacity-official-liquidator-bank-sarasin-alp-2 or via the CDN mirror at https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-009-2023_20241002.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Order with Reasons of Justice Sir Jeremy Cooke | 30 April 2024 | Basis for disclosure obligations |
| Case Management Order of Justice Sir Jeremy Cooke | 20 June 2024 | Basis for disclosure obligations |
Legislation referenced:
- Rules of the DIFC Courts (RDC), Part 28 (Production of Documents)