The DIFC Court of First Instance reaffirmed the fundamental principle of open justice, rejecting an application by Arif Naqvi to seal judicial review proceedings concerning the Dubai Financial Services Authority (DFSA).
Why did Arif Naqvi seek to keep proceedings in CFI 060/2021 and CFI 065/2021 private?
Arif Naqvi, the former head of the Abraaj Group, initiated these proceedings to challenge the DFSA’s regulatory actions. His primary contention was that the public nature of the DIFC Court proceedings would cause irreparable harm to his right to a fair trial in the United States, where he faced separate criminal charges. Naqvi argued that the publicity surrounding the DFSA’s regulatory investigation and the subsequent judicial review would prejudice potential jurors and sway public opinion against him.
The Claimant sought an order to restrict access to the court file and conduct the proceedings in private, invoking concerns over confidentiality and the potential for the judicial process to be undermined by media scrutiny. However, the Court found these arguments insufficient to override the public interest. As noted in the ruling:
Publicity would not defeat the object of the hearing/ determination of the Judicial Review application ( “JR” ) and there is nothing inherently confidential about the way in which the Abraaj Group was run.
Which judge presided over the application for privacy in Arif Naqvi v The Dubai Financial Services Authority?
Justice Sir Jeremy Cooke presided over the application in the DIFC Court of First Instance. The order was issued on 5 August 2021, following a review of the Claimant’s application dated 24 June 2021 and the subsequent evidence submitted by both the Claimant and the Defendant.
What arguments did Arif Naqvi and the DFSA advance regarding the publicity of regulatory proceedings?
Arif Naqvi’s legal team argued that the court should exercise its discretion to protect the integrity of his US criminal trial by shielding the DIFC proceedings from public view. They contended that the disclosure of documents and the public nature of the hearings would create a prejudicial environment. Naqvi relied on solicitors’ witness statements to suggest that the information involved was inherently confidential and that privacy was necessary in the interests of justice.
Conversely, the DFSA maintained that there was no legal basis for such a departure from the standard open-court procedure. The DFSA argued that the existence of regulatory proceedings against Naqvi was already a matter of public knowledge given the high-profile collapse of the Abraaj Group. They asserted that the Claimant’s decision to initiate judicial review proceedings did not grant him a right to silence or privacy, and that the public had a legitimate interest in the oversight of financial services regulation.
Did the Court find that the interests of justice required the proceedings to be held in private?
The central legal question was whether the Claimant had met the high threshold required to displace the presumption of open justice under DIFC law. The Court had to determine if the potential for "reputational damage" or the alleged risk to a fair trial in a foreign jurisdiction constituted a sufficient "interest of justice" to justify a private hearing. The Court examined whether the specific circumstances of the case—namely the ongoing US criminal proceedings—created a conflict that necessitated the sealing of the DIFC court file.
How did Justice Sir Jeremy Cooke apply the test for open justice in this matter?
Justice Sir Jeremy Cooke applied a strict test, emphasizing that the default position in the DIFC is that all proceedings must be public. He evaluated whether the Claimant’s concerns regarding the US jury were grounded in evidence, ultimately concluding they were speculative. The judge reasoned that any regulatory decision would likely be inadmissible in a US criminal trial, and that a US trial judge would be capable of instructing a jury to disregard external media coverage.
The Court further noted that the Claimant had chosen to bring the judicial review application himself, and that the public was entitled to access the court file. The reasoning was clear:
I do not consider that the interests of justice require this matter to be decided in private nor that any part of the record which is ordinarily available to the public should be denied it.
The judge also addressed the personal nature of the allegations, noting that while the Claimant’s reputation might suffer, this did not meet the criteria for privacy. As the ruling stated:
Whilst his reputation may fall a little further, I consider that none of the three bases for privacy which are set out in paragraph 2 of this Ruling are met.
Which DIFC statutes and RDC rules govern the presumption of open justice?
The Court relied primarily on Article 13 of DIFC Law No 10 of 2004, which mandates that court proceedings be open to the public unless the interests of justice dictate otherwise. This statutory requirement is supplemented by Rule 35.4 of the Rules of the DIFC Courts (RDC), which outlines the narrow circumstances under which a hearing may be held in private.
The Court’s application of these authorities was summarized as follows:
Art 13 of DIFC Law No 10 of 2004 provides that they should be open to the public unless the interests of justice provide otherwise and Rule 35.4 of RDC sets out circumstances in which a hearing may be held in private.
How did the Court distinguish the risk of publicity in the DIFC from the US criminal proceedings?
The Court utilized the precedent of previous regulatory actions taken against the Abraaj Group in 2019 to demonstrate that the public was already aware of the regulatory scrutiny. Justice Cooke reasoned that the current proceedings were a natural continuation of that public narrative. He specifically addressed the US fair trial argument by stating:
Any Final Decision would doubtless be inadmissible in a criminal trial in the USA and it is not contended otherwise.
He further reinforced this by drawing a comparison to the previous public actions taken against the group:
The same holds good, a fortiori, for these proceedings. In July 2019 action was taken against Abraaj Capital Ltd and Abraj Investment Management Limited with consequent publicity.
What was the final disposition of the application and the order regarding costs?
The Court refused the Claimant’s application in its entirety. Justice Sir Jeremy Cooke ordered that the proceedings remain public and that the Claimant bear the financial burden of the unsuccessful application. The order stated:
In the circumstances and for the reasons given, the Application fails and the Claimant must pay the Defendant’s costs, to be assessed by the Registrar, if not agreed.
What are the wider implications for litigants seeking privacy in DIFC regulatory disputes?
This ruling serves as a stern reminder that the DIFC Courts maintain a high threshold for granting privacy. Litigants cannot expect to shield themselves from the scrutiny of the court simply because they are involved in parallel proceedings in other jurisdictions. The decision reinforces that the "open justice" principle is a cornerstone of the DIFC legal system and that the court will not facilitate the suppression of information unless there is compelling, evidence-based proof that a fair trial is genuinely at risk. Practitioners must anticipate that any attempt to seal a file will be met with rigorous scrutiny and a strong presumption in favor of public access.
Where can I read the full judgment in Arif Naqvi v The Dubai Financial Services Authority [2021] DIFC CFI 060?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-060-2021-arif-naqvi-v-dubai-financial-services-authority or via the CDN link: https://littdb.sfo2.cdn.digitaloceanspaces.com/litt/AE/DIFC/judgments/court-first-instance/DIFC_CFI-060-2021_20210805.txt
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case law cited in this specific order. |
Legislation referenced:
- DIFC Law No 10 of 2004, Article 13
- Rules of the DIFC Courts (RDC), Rule 35.4