GLOBE INVESTMENT HOLDINGS v COMMERCIAL BANK OF DUBAI [2024] DIFC CFI 028 — Inadvertent disclosure and the threshold for removing documents from the eRegistry (25 September 2024)

The DIFC Court of First Instance has clarified the stringent requirements for removing documents from the court record, ruling that inadvertent disclosure of privileged information does not automatically entitle a party to the deletion of filings from the eRegistry, particularly where those documents have been deployed multiple times.

What was the specific dispute regarding the unredacted Bills of Costs filed by Commercial Bank of Dubai and others in CFI 028/2023?

The lawsuit involves a complex web of costs assessment proceedings following the discharge of a freezing order. The Defendants, including Commercial Bank of Dubai and several investment entities, sought to excise specific documents from the DIFC Court’s eRegistry. The core of the dispute centered on the Defendants' filing of Bills of Costs on three separate occasions—14 February, 13 March, and 1 April 2024—which contained unredacted invoices.

The Defendants contended that these invoices, which related to separate legal proceedings in England and Wales, were privileged and had been filed in error. They argued that the Court should intervene to protect this privilege by ordering the Registry to delete the files. The Claimant, Globe Investment Holdings, opposed this, asserting that the application was premature given an existing stay on proceedings and that the privilege had been effectively waived through repeated disclosure. As noted in the court records:

(b) The invoices included in the Original and in the Amended BOC were inadvertently filed (and subsequently served on the Claimant) in unredacted form.

Which judge presided over the application to delete the Bills of Costs in the Court of First Instance?

The application was heard and determined by Justice Michael Black KC, sitting in the DIFC Court of First Instance. The order with reasons was issued on 25 September 2024, following the parties' agreement that the application could be dealt with without an oral hearing.

What were the specific legal arguments advanced by Onoma FZE for the Defendants and Hadef & Partners for the Claimant?

The Defendants, represented by Onoma FZE, argued that the disclosure of the unredacted invoices was a clear case of inadvertent error. They maintained that because these documents contained sensitive, privileged information regarding ongoing litigation in England and Wales, the Court had an equitable duty to remove them from the public-facing eRegistry to prevent prejudice. They emphasized that they had since filed a "Revised BOC" with appropriate redactions, rendering the original filings irrelevant and potentially damaging.

Conversely, the Claimant, represented by Hadef & Partners, argued that the application was procedurally premature due to a stay of proceedings established by a consent order dated 12 July 2024. Furthermore, the Claimant’s position was that the Defendants had failed to act with sufficient diligence to prevent the disclosure, and that the repeated filing of these documents across three separate instances constituted an implied waiver of any privilege that might have originally attached to the invoices.

What was the precise doctrinal issue the Court had to resolve regarding the removal of documents from the DIFC eRegistry?

The Court was tasked with determining whether the inadvertent filing of privileged documents into the court record constitutes a sufficient ground for the Court to exercise its discretion to order the deletion of those documents from the eRegistry. The doctrinal challenge lay in balancing the sanctity of legal professional privilege against the principle of open justice and the finality of the court record. Specifically, the Court had to decide whether the "obvious mistake" doctrine—which allows for equitable intervention in cases of inadvertent disclosure—applied when the party seeking relief had already filed the documents on multiple occasions, thereby arguably waiving the privilege they sought to protect.

How did Justice Michael Black KC apply the doctrine of implied waiver to the Defendants' request?

Justice Black KC reasoned that while the initial disclosure may have been inadvertent, the Defendants’ subsequent conduct undermined their claim for protection. By filing the unredacted documents on three separate occasions, the Defendants had effectively treated the information as part of the public record. The Court found that the threshold for equitable intervention was not met because the privilege had been waived through the repeated deployment of the documents in the proceedings.

The judge concluded that the Court should not intervene to "rescue" a party from the consequences of their own repeated procedural errors. The reasoning emphasized that once documents are filed and served in the context of a detailed assessment, the expectation of confidentiality is significantly diminished. As stated in the judgment:

If and insofar as necessary I give the Claimant permission to use the documents in these proceedings under RDC 28.67.

Which specific statutes and RDC rules were central to the Court’s decision?

The Court’s decision was primarily guided by the Rules of the DIFC Courts (RDC). Specifically, RDC 28.67 was cited as the authority under which the Court granted the Claimant permission to utilize the documents in the proceedings, notwithstanding the Defendants' claims of privilege. The Court also referenced Practice Direction No. 5 of 2014, which governs the requirements for Bills of Costs and the procedural obligations of parties during the detailed assessment process.

How did the Court utilize English case law to interpret the threshold for privilege waiver?

Justice Black KC relied on established principles from English jurisprudence to determine the limits of privilege in the context of court filings. The Court referenced International Business Machines Corp and another v Phoenix International (Computers) Ltd [1995] 1 All ER 413, which provides the framework for assessing whether a document has been disclosed in circumstances that amount to a waiver of privilege. By applying this authority, the Court determined that the Defendants’ repeated filing of the unredacted invoices constituted an implied waiver, as the documents had been placed into the court record without immediate objection or attempts to claw back the information until the application in August 2024.

What was the final outcome and the specific orders made by the Court regarding the Defendants' application?

Justice Black KC dismissed the Defendants' application in its entirety. The Court ordered that the unredacted Bills of Costs remain on the court record and explicitly granted the Claimant permission to use the unredacted documents in the ongoing proceedings. Furthermore, the Court ordered the Defendants to bear the costs of the application. The specific order regarding costs was:

The Defendants shall pay its costs of the Defendants’ Application to the Claimant to be assessed on the standard basis in default of agreement.

What are the wider implications of this ruling for practitioners dealing with costs assessments in the DIFC?

This decision serves as a stern warning to practitioners regarding the management of privileged information in the eRegistry. It establishes that the DIFC Court will not readily exercise its discretion to remove documents from the record simply because they were filed in error. Practitioners must ensure that all documents are rigorously redacted before filing, as the "inadvertent disclosure" defense is significantly weakened—or entirely negated—if the documents are filed on multiple occasions or if the party fails to act immediately to rectify the error. Litigants must now anticipate that once a document is uploaded to the eRegistry, the Court will be highly reluctant to grant a "deletion" order, effectively treating the filing as a waiver of privilege.

Where can I read the full judgment in Globe Investment Holdings v Commercial Bank of Dubai [2024] DIFC CFI 028?

The full judgment can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0282023-globe-investment-holdings-limited-v-1-commercial-bank-dubai-2-hortin-holding-limited-3-lodge-hill-limited-4-westdene-7

Cases referred to in this judgment:

Legislation referenced:

• Rules of the DIFC Courts (RDC): RDC 28.67, RDC 38.13
• Practice Direction No. 5 of 2014 (Costs)