This order addresses the procedural boundaries of witness evidence in the DIFC Courts, specifically prohibiting the inclusion of legal submissions and hearsay within witness statements filed by legal counsel.
Why did the Third Defendant in CFI-047-2017 seek to strike the witness statement of Rebecca Copley?
The dispute arose from a jurisdictional challenge filed by the Third Defendant, Shaikha Raneya Hamad Mubarak Hamad Al Khalifa, against the Commercial Bank of Dubai PSC. In response to the Third Defendant’s jurisdictional application dated 7 December 2017, the Claimant filed a witness statement authored by its legal counsel, Rebecca Copley. The Third Defendant subsequently filed an application on 4 February 2018, arguing that the statement was procedurally improper.
The crux of the dispute was the content of the statement, which the Third Defendant contended was not a factual account of events but rather a vehicle for legal argument and assertions of fact for which the counsel lacked personal, first-hand knowledge. The Third Defendant sought to have the statement struck out entirely under RDC 29.10 or RDC 29.15, or alternatively, requested that the Court discount its evidentiary weight. As noted in the Court’s findings:
I find that paragraphs 11,15, 24 and 25 of the witness statement of Rebecca Copley, Counsel on record for Claimant, is characterized by legal arguments and by controversial factual statements that are unsupported by documentary evidence, about which Ms. Copley does not have first-hand knowledge
The application highlighted the tension between the role of an advocate and the role of a witness, asserting that counsel should not use the witness statement process to bypass the requirements of formal legal submissions. The full details of the application and the Court’s subsequent order can be reviewed at the DIFC Courts website.
Which judge presided over the application to strike the witness statement in CFI-047-2017?
The application was heard and determined by H.E. Justice Ali Al Madhani, sitting in the DIFC Court of First Instance. The order was issued on 11 March 2018, following a review of the Third Defendant’s application dated 4 February 2018 and the Claimant’s subsequent response.
What arguments did the Third Defendant and the Claimant advance regarding the admissibility of the witness statement?
The Third Defendant argued that the witness statement of Rebecca Copley violated the fundamental purpose of witness evidence under the Rules of the DIFC Courts (RDC). Specifically, the Third Defendant contended that the statement improperly introduced legal arguments and controversial factual assertions that were not supported by documentary evidence. The Third Defendant maintained that as counsel, Ms. Copley lacked the necessary first-hand knowledge to provide testimony on the matters contained in the contested paragraphs, thereby rendering the statement an inappropriate attempt to influence the Court’s view on the jurisdictional challenge.
The Claimant, Commercial Bank of Dubai PSC, opposed the application. While the specific arguments of the Claimant are not detailed in the final order, the Court’s decision to grant the application indicates that the Claimant’s defense of the statement failed to satisfy the Court that the inclusion of such material was consistent with the RDC. The Court ultimately sided with the Third Defendant, agreeing that the inclusion of legal submissions and unsupported factual claims within a witness statement was a procedural error that necessitated correction.
What was the specific legal question H.E. Justice Ali Al Madhani had to answer regarding the scope of RDC 29.10?
The Court was tasked with determining whether a witness statement filed by legal counsel, which contains legal arguments and factual assertions lacking first-hand knowledge, constitutes an abuse of the RDC or a failure to comply with the standards for evidence. The doctrinal issue centered on the distinction between a witness statement—which must be confined to facts within the witness's own knowledge—and legal submissions, which are reserved for pleadings and oral or written arguments. The Court had to decide whether it possessed the authority under RDC 29.10 and RDC 29.15 to order the removal of such content to preserve the integrity of the evidentiary record.
How did the Court apply the doctrine of witness evidence to the statement of Rebecca Copley?
H.E. Justice Ali Al Madhani applied the established principle that witness statements must be limited to matters of fact within the personal knowledge of the deponent. By reviewing the specific paragraphs identified by the Third Defendant, the Court determined that the statement crossed the line from factual testimony into the realm of advocacy. The Court’s reasoning was based on the requirement that evidence must be reliable and that counsel should not conflate their role as an advocate with that of a witness.
The Court’s decision was a direct application of the RDC provisions governing the content of evidence. By finding that the statement was "characterized by legal arguments and by controversial factual statements," the Court concluded that the Claimant had failed to adhere to the procedural standards expected in the DIFC Courts. Consequently, the Court exercised its discretion to ensure the record was purged of the improper material:
The Claimant is ordered to amend its evidence by removing the controversial statements and unsupported facts in the said paragraphs or elsewhere in its evidence within 7 days from the date of this Order.
Which RDC rules were central to the Court’s decision to strike the content of the witness statement?
The Court’s decision was grounded in several key provisions of the Rules of the DIFC Courts (RDC). Specifically, the Court relied upon RDC 29.9, 29.10, 29.15, and 29.18. These rules collectively govern the preparation, filing, and striking out of witness statements. Furthermore, the Court invoked paragraph 2.1 of Practice Direction No. 1 of 2016, which provides guidance on the conduct of parties and the presentation of evidence. These authorities were used to establish that the Court has the inherent power to manage its own proceedings by removing evidence that does not comply with the rules of procedure or that is otherwise prejudicial to the fair conduct of the case.
How did the Court use the cited RDC rules to regulate the conduct of counsel in CFI-047-2017?
The Court utilized RDC 29.10 and RDC 29.15 as the primary mechanisms to regulate the evidence. RDC 29.10 allows the Court to control the evidence by giving directions as to the issues on which it requires evidence and the nature of that evidence. By applying these rules, the Court effectively signaled that witness statements are not to be used as a substitute for legal submissions. The reference to RDC 4.2(14) also played a role in the Court’s management of the timetable, ensuring that the jurisdictional application was not unduly delayed by the need to rectify the improper evidence. The Court’s approach reinforced the principle that legal counsel must maintain a clear separation between their role as an advocate and their role as a provider of factual evidence.
What was the final disposition of the application and the costs order issued by the Court?
The application was granted in its entirety. H.E. Justice Ali Al Madhani ordered the Claimant to amend its evidence by removing the controversial statements and unsupported facts found in paragraphs 11, 15, 24, and 25 of the witness statement, as well as any other similar content, within a period of 7 days from the date of the order. Regarding the costs of the application, the Court ruled in favor of the Third Defendant:
The Claimant shall pay the Defendant’s costs of the Application, to be assessed by the Registrar if not agreed.
How does this order influence the practice of filing witness statements in the DIFC Courts?
This order serves as a clear warning to legal practitioners in the DIFC that the Court will not tolerate the blending of legal argument with factual testimony in witness statements. Practitioners must ensure that any evidence submitted is strictly limited to facts within the witness's first-hand knowledge. The inclusion of legal submissions or hearsay, particularly when authored by counsel, is likely to result in an order to strike the offending content and may lead to adverse costs orders. This decision reinforces the importance of adhering to the RDC and Practice Directions, ensuring that the evidentiary phase of litigation remains focused on factual truth rather than argumentative posturing.
Where can I read the full judgment in Commercial Bank of Dubai v M/S Totora Restaurant and Lounge [2018] DIFC CFI 047?
The full text of the order can be accessed via the DIFC Courts website at: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0472017-commercial-bank-dubai-psc-v-ms-totora-restaurant-and-lounge-llc-others. A copy is also available via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-047-2017_20180311.txt.
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No specific case law precedents were cited in the text of this Order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) 4.2(14)
- Rules of the DIFC Courts (RDC) 29.9
- Rules of the DIFC Courts (RDC) 29.10
- Rules of the DIFC Courts (RDC) 29.15
- Rules of the DIFC Courts (RDC) 29.18
- Practice Direction No. 1 of 2016, paragraph 2.1