This order addresses the procedural management of witness testimony in the ongoing litigation between Aida Dagher and Capital Investment International, specifically concerning the necessity of physical presence versus remote participation for key witnesses.
Why did Aida Dagher file Application Notice CFI-013-2011/7 seeking permission to give evidence by way of video link?
The application filed by Aida Dagher on 9 July 2013 was a direct response to the logistical challenges of securing testimony for the upcoming trial in CFI 013/2011. Given the complex history of this litigation—which has seen numerous procedural skirmishes, including CAPITAL INVESTMENT INTERNATIONAL v GCC INTERNATIONAL [2011] DIFC CFI 013 — Procedural direction on document production (14 December 2011) and AIDA DAGHER v GCC INTERNATIONAL [2012] DIFC CFI 013 — Disclosure of corporate governance documents (27 February 2012)—the Claimant sought to ensure that essential evidence could be presented without the risk of physical interference or unavailability.
The core of the dispute involves the Claimant’s desire to testify via video link, a request necessitated by concerns regarding the availability and security of witnesses, particularly Mr. Sultan Jaffar. The Claimant’s position was that if the Defendant could not guarantee the status and availability of Mr. Jaffar during the trial window of 29 September to 4 October 2013, the court should exercise its discretion to permit remote testimony to prevent a failure of justice. This application follows a long line of procedural disputes in this case, such as the issues addressed in AIDA DAGHER v CAPITAL INVESTMENT INTERNATIONAL [2012] DIFC CFI 013 — Assessment of costs for Application Notice 049/2011 (09 May 2012).
Which DIFC Court official presided over the hearing of the application on 29 August 2013?
The application was heard by Assistant Registrar Natasha Bakirci, sitting in the Court of First Instance. The order was formally issued on 3 September 2013, following the hearing held on 29 August 2013, as part of the ongoing case management of CFI 013/2011.
What arguments did Mona Sinaki and Robert Karrar-Lewsley advance regarding the video link evidence?
Mona Sinaki, representing the Claimant Aida Dagher, argued that the court should grant the application for video link evidence to ensure the trial could proceed efficiently and fairly. The Claimant’s position was grounded in the necessity of securing testimony from Mr. Sultan Jaffar, suggesting that without a formal undertaking from the Defendant, the Claimant’s ability to present her case would be compromised. The Claimant relied on the precedent of previous undertakings provided by the Defendant, specifically referencing the undertaking dated 5 December 2012, as a benchmark for the level of assurance required.
Conversely, Robert Karrar-Lewsley of Al Tamimi & Co LLP, representing the Defendant Capital Investment International, resisted the application. The Defendant’s legal team sought to maintain the standard requirement for physical attendance at trial, arguing that video link testimony should be the exception rather than the rule. The Defendant’s position was that the Claimant had not met the threshold for departing from traditional trial procedures, and that the requested undertaking regarding Mr. Sultan Jaffar was overly burdensome or unnecessary in the context of the current trial schedule.
What was the specific jurisdictional and procedural question regarding the use of video link evidence that the Assistant Registrar had to resolve?
The court was tasked with determining whether to grant the Claimant’s request for video link testimony under the Rules of the DIFC Courts (RDC) or to compel the Defendant to provide a specific protective undertaking. The doctrinal issue centered on the court’s case management powers to facilitate the taking of evidence when there is a risk of witness unavailability or interference. The Assistant Registrar had to balance the principle of open, in-person testimony against the practical necessity of ensuring that the trial could proceed as scheduled between 29 September and 4 October 2013.
How did Assistant Registrar Natasha Bakirci apply the conditional order doctrine to resolve the dispute between the parties?
The Assistant Registrar utilized a conditional order to force the Defendant to choose between two outcomes, effectively shifting the burden of ensuring witness availability onto the party best positioned to control it. By linking the permission for video link evidence to the provision of an undertaking, the court created a self-executing mechanism that incentivized the Defendant to cooperate.
UNLESS the Defendant, within 14 days of this Order, provides the Claimant with an undertaking similar to that previously provided by the Defendant in relation to Aida Dagher on 5 December 2012, the difference being that this undertaking be in relation to: i) Mr Sultan Jaffar and; ii) the period of 29 September - 4 October 2013 for the purpose of the Trial in the case CFI-013-2011, the Claimant's Application CFI-013-2011/7 seeking permission to give evidence by way of video link shall be granted.
This reasoning reflects a pragmatic approach to case management, ensuring that the trial date remains firm regardless of whether the Defendant chooses to provide the requested undertaking or accept the use of video link technology.
Which specific RDC rules and prior orders informed the Assistant Registrar’s decision?
The decision was informed by the court's inherent case management powers under the RDC and specifically referenced the Amended Order of Justice Sir David Steel dated 21 March 2013. The Assistant Registrar also relied upon the historical context of the case, specifically the undertaking provided by the Defendant on 5 December 2012, which served as the template for the current order. The court also reviewed the fourth Witness Statement of Lina Salah Saheb (dated 18 July 2013) and the Witness Statement of Shiraz Sethi (dated 6 August 2013) to assess the evidentiary basis for the application.
How did the court utilize the precedent of the 5 December 2012 undertaking in this ruling?
The court used the 5 December 2012 undertaking as a "standard of conduct" for the Defendant. By requiring the Defendant to provide a "similar" undertaking, the court effectively imported the terms of the previous agreement into the current procedural framework. This ensured consistency in how the court manages the relationship between the parties, particularly regarding the protection and availability of witnesses. The court did not need to invent new obligations; it simply extended the scope of an existing, proven mechanism to cover Mr. Sultan Jaffar for the specific trial window.
What was the final disposition and the order regarding costs in this application?
The Assistant Registrar issued a conditional order: the Claimant’s application for video link evidence is granted unless the Defendant provides the specified undertaking regarding Mr. Sultan Jaffar within 14 days of the order date (3 September 2013). The order also granted "Liberty to apply," allowing the parties to return to the court if further issues arise regarding the implementation of the undertaking. Costs were ordered to be "costs in the case," meaning the successful party at the conclusion of the trial will likely recover the costs associated with this application.
How does this order impact the practice of managing witness testimony in high-conflict DIFC litigation?
This order highlights the utility of conditional orders as a tool for managing recalcitrant parties in complex litigation. Practitioners should note that the DIFC Courts are increasingly willing to use "Unless" orders to force parties to provide undertakings regarding witness availability, rather than simply ruling on the admissibility of video link evidence in a vacuum. This approach minimizes the need for further court intervention by placing the onus of procedural compliance directly on the party resisting the application. Litigants must now anticipate that if they oppose a request for remote testimony, they may be required to provide formal, court-sanctioned undertakings to ensure the physical presence of witnesses, or otherwise accept the use of video technology.
Where can I read the full judgment in AIDA DAGHER v CAPITAL INVESTMENT INTERNATIONAL [2013] DIFC CFI 013?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0132011-application-order-he-justice-ali-al-madhani-2 or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-013-2011_20130903.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| Aida Dagher v Capital Investment International | [2012] DIFC CFI 013 | Reference to prior undertaking dated 5 December 2012 |
Legislation referenced:
- Rules of the DIFC Courts (RDC)
- Amended Order of Justice Sir David Steel dated 21 March 2013