The DIFC Court of First Instance has clarified the threshold for determining "Unless Order" applications on paper, emphasizing that allegations of fraud and complex factual disputes necessitate an oral hearing to ensure procedural fairness.
Why did H.E. Justice Sir Jeremy Cooke refuse to determine the Unless Application in CFI 069/2024 on paper?
The Court determined that the Defendant’s request for an "Unless Order"—a procedural tool that would strike out the Claimants' case if specific conditions were not met—involved issues too complex for a summary determination without a hearing. The dispute involves serious allegations of fraud leveled by the Claimants against ETG Commodities Holding, alongside intricate factual disagreements regarding the withdrawal of banking facilities and the resulting financial losses.
The Court held that the gravity of these accusations and the evidentiary burden required to substantiate them precluded a decision based solely on written submissions. As noted in the Court’s reasoning:
That cannot properly be done on paper in a case like this where there are accusations of fraud against the Defendant and clear issues of fact in relation to the withdrawal of banking facilities and in relation to loss and damage.
The Court emphasized that the potential for the Claimants to be "shut out" of their claims requires a higher degree of judicial oversight, which can only be achieved through an oral hearing where the parties can present their arguments directly to the bench.
Which judge presided over the order in Keshav Global Trading v ETG Commodities Holding and what is the status of the case?
The order was issued by H.E. Justice Sir Jeremy Cooke in the DIFC Court of First Instance on 13 August 2025. The matter is currently proceeding toward a Case Management Conference (CMC) scheduled for 26 September 2025, where the Defendant’s Unless Application will be heard if the Defendant chooses to pursue it.
What were the respective positions of the Claimants and the Defendant regarding the Unless Application?
The Defendant, ETG Commodities Holding, sought an Unless Order to compel the Claimants to provide specific evidence or face the dismissal of their claims. The Claimants, Keshav Global Trading LLC and Keshav Global Private Limited, currently appear to be unrepresented, which significantly complicated the procedural landscape of the application.
The Court highlighted the specific obligations of the Defendant’s counsel in this context. Because the Claimants are unrepresented, the Court placed a heightened duty on the Defendant’s legal team to assist the Court in ensuring a fair process. The Court explicitly stated:
If the Claimants remain unrepresented, the Defendant’s skeleton should provide the assistance to the Court required when the opposing party is unrepresented.
This directive underscores the Court’s expectation that the Defendant’s counsel must act as a "registered practitioner" who facilitates, rather than obstructs, the Court’s ability to reach a just outcome, even when the opposing party lacks legal counsel.
What was the precise legal question the Court had to answer regarding the Defendant’s Unless Application?
The central legal question was whether the Court could, or should, exercise its discretion to grant an Unless Order on the basis of the written record alone, given the nature of the underlying claims. Specifically, the Court had to determine if the procedural requirements for an Unless Order—which typically involve a failure to comply with court directions—could be satisfied without a hearing when the Claimants are unrepresented and the case involves allegations of fraud.
The Court had to balance the need for procedural efficiency and compliance with the Rules of the DIFC Courts (RDC) against the fundamental requirement of natural justice. The Court concluded that the complexity of the factual matrix, particularly regarding the nexus between the withdrawal of banking facilities and the alleged loss and damage, rendered a paper-based determination inappropriate.
How did H.E. Justice Sir Jeremy Cooke apply the test for procedural fairness in the context of an unrepresented party?
Justice Cooke adopted a protective approach, ensuring that the Claimants were given a clear roadmap to rectify their procedural deficiencies before the Court would consider the draconian measure of striking out their claim. The Court mandated that the Claimants file witness evidence to substantiate their claims of loss and damage, including details regarding their banking relationships and lost business contracts.
The Court’s reasoning focused on the necessity of evidence to support the claims, stating:
The witness statement(s) should therefore address all the matters of which complaint is made by the Defendant and provide all evidence relied on in support of the claims.
By ordering the Claimants to file this evidence within 21 days, the Court provided a final opportunity for the Claimants to "fully particularise" their case. This approach ensures that if the matter proceeds to the CMC, the Court will have a comprehensive evidentiary record upon which to decide whether the Unless Order is warranted.
Which specific evidentiary requirements did the Court impose on the Claimants to support their claims of loss and damage?
The Court’s order was highly specific regarding the content of the witness statements required from the Claimants. The Claimants must produce evidence from individuals with direct knowledge of the events. As specified in the order:
That witness statement or statements must be made by a person or persons with knowledge of the events relied on to support the Claim and to support the loss and damage claimed, including the alleged negotiation and relationship with the banks and the lost contracts and business allegedly lost by the Claimant, and/or its subsidiaries or affiliated companies. The loss and damage claimed must be fully particularised in evidence and all documents relied on produced by the Claimant.
This requirement is intended to move the case beyond mere allegations and into the realm of verifiable evidence, which is essential for the Court to assess the merits of the Defendant’s application at the upcoming CMC.
How does the Court’s directive regarding the Defendant’s Unless Application at the CMC impact future practice?
The Court made it clear that the Unless Application is not a "set and forget" procedure. The Court explicitly stated:
Should the Defendant wish to pursue its Unless Application, it should do so at the CMC.
This reinforces the principle that in the DIFC, an Unless Order is a serious procedural sanction that requires judicial scrutiny at a hearing, particularly when the respondent to the application is unrepresented. Practitioners should anticipate that the Court will be reluctant to grant such orders on paper where there is any ambiguity regarding the facts or where the opposing party has not had a full opportunity to be heard.
What is the ultimate disposition of the Unless Application as of the August 13, 2025 order?
The Court ordered that the Unless Application is not appropriate for determination on paper and must be dealt with at a hearing. The Court set a strict timeline for the Claimants to file their witness statements by 3 September 2025 and for both parties to serve skeleton arguments by 24 September 2025. The application will be heard at the CMC on 26 September 2025.
What are the wider implications for litigants in the DIFC regarding the use of Unless Orders?
This case serves as a warning to practitioners that the DIFC Courts will not allow the "Unless Order" mechanism to be used as a shortcut to bypass the need for a hearing in complex or high-stakes litigation. Even where a party is unrepresented, the Court expects the opposing counsel to maintain a standard of conduct that assists the Court in achieving a fair resolution. Litigants must be prepared to fully particularize their claims in evidence, as failure to do so in the face of an Unless Application will likely result in the Court striking out the claim.
Where can I read the full judgment in Keshav Global Trading v ETG Commodities Holding [2025] DIFC CFI 069?
The full order with reasons can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0692024-1-keshav-global-trading-llc-2-keshav-global-private-limited-v-etg-commodities-holding-limited
Legislation referenced:
- Rules of the DIFC Courts (RDC) - Part 7 (Claims)
- Rules of the DIFC Courts (RDC) - Unless Orders (General Practice)