The DIFC Court of First Instance examines the evidentiary threshold for preliminary issues in complex commodities litigation involving allegations of forged bills of lading and subsequent banking facility withdrawals.
Did the Bank of India and Bank of Baroda require the closure of facilities held by Keshav Global Trading as alleged in the Particulars of Claim?
The central dispute in this matter concerns whether the Claimants, Keshav Global Trading LLC and Keshav Global Private Limited, were forced to terminate their banking facilities due to the actions of the Defendant, ETG Commodities Holdings Limited. The Claimants alleged that the Defendant’s conduct—specifically regarding the handling of bills of lading—precipitated a crisis with their financiers, the Bank of India and the Bank of Baroda. The Defendant sought to frame this as a preliminary issue, hoping to demonstrate that the Claimants’ primary claims for damages were unsustainable if the banks had not, in fact, mandated the closure of those facilities.
The Court bifurcated the inquiry into two distinct limbs: whether the banks required the closure, and whether that requirement was motivated by the specific reasons alleged by the Claimants. Regarding the first limb, the Court confirmed the Claimants' position. As noted in the Order:
Answer: Yes. Both Banks so required.
This finding establishes a factual baseline regarding the banks' demands, though it leaves the underlying causation—the "why" behind the banks' decisions—as a live issue for trial. The litigation remains active, as the Defendant failed to secure the "knockout blow" it sought through this procedural maneuver.
How did H.E. Justice Sir Jeremy Cooke handle the preliminary issue hearing in CFI 069/2024?
The hearing took place on 11 December 2025 before H.E. Justice Sir Jeremy Cooke in the DIFC Court of First Instance. The proceedings focused on the Defendant’s attempt to resolve the litigation via a preliminary issue, a strategy the Court viewed with skepticism, noting that the Defendant had pursued this path only after earlier attempts at summary judgment and strike-out had failed due to the presence of unresolved factual disputes.
What were the competing arguments advanced by Mr Sham Uddin for the Claimants and Mr Blackwood KC for the Defendant regarding the bank facility closures?
Mr Sham Uddin, representing the Claimants, maintained that the Defendant’s actions directly caused the banking crisis, leading to the forced closure of facilities and subsequent financial losses. The Claimants relied on witness statements, including those from Mr Vyom Garg, to link the Defendant’s alleged breaches of contract and duty to the banks' demands.
Conversely, Mr Blackwood KC, for the Defendant, argued that the preliminary issue should serve as a dispositive "knockout blow." The Defendant’s position was that if the Claimants could not prove that the banks required the closure of facilities for the specific reasons alleged, the bulk of the Claimants' damages claims would collapse. The Defendant sought to limit the scope of the trial by isolating the causation element of the banking facility withdrawals, effectively challenging the Claimants to prove the nexus between the alleged fraud and the banks' administrative actions at an early stage.
What was the precise doctrinal issue the Court had to answer regarding the causal link between the Defendant’s conduct and the bank facility closures?
The Court was tasked with determining whether the evidence supported the Claimants' assertion that the Bank of India and the Bank of Baroda demanded the closure of facilities for the reasons specifically articulated in the Claimants' response to the Unless Order Application. The doctrinal challenge lay in distinguishing between the fact of the closure—which the Court found to be proven—and the motivation for that closure. The Court had to decide if the evidence provided by the Claimants was sufficient to establish that the banks acted specifically due to the alleged forged bills of lading or other breaches by the Defendant, rather than for other commercial or regulatory reasons independent of the Defendant’s conduct.
How did Justice Sir Jeremy Cooke apply the test for evidentiary sufficiency in the context of the preliminary issue?
Justice Sir Jeremy Cooke applied a rigorous standard to the evidence presented, ultimately concluding that while the banks did indeed require the closure of the facilities, the current evidentiary record was insufficient to attribute that decision to the specific causes alleged by the Claimants. The Court emphasized that the Defendant’s strategy of using a preliminary issue to bypass a full trial was ill-suited to the complexity of the facts. As the Court observed:
There are two points to be made in that context: (a) It was the Defendant who wanted this preliminary issue, after I had decided that questions of fact arose which prevented any successful strike out or summary judgment.
The Court reasoned that because the "why" behind the banks' decisions involved nuanced banking internal policies and potentially complex communications, it could not be resolved on the current record. Consequently, the Court declined to make a definitive finding on the second limb of the preliminary issue, leaving the matter for further discovery and trial.
Which RDC rules and procedural frameworks governed the Court’s decision on the preliminary issue?
The Court’s decision was governed by the Rules of the DIFC Courts (RDC), which provide the framework for managing preliminary issues and disclosure obligations. Justice Sir Jeremy Cooke noted that the Claimants, as litigants in person (albeit represented by a Part 2 Advocate on a direct access basis), may have struggled with the standard of disclosure required. The Court’s order specifically invoked the RDC to allow the Claimants to amend their Particulars of Claim or join additional parties, signaling a procedural path forward that prioritizes the refinement of the pleadings over the summary dismissal of the claim.
How did the Court’s previous orders and the "Unless Order" application influence the current ruling?
The Court’s ruling was heavily influenced by the history of the case, specifically the "Unless Order Application" (CFI-069-2024/3) and the previous Order dated 19 March 2025. The Court noted that the Claimants’ compliance with disclosure obligations had been a point of contention throughout the proceedings. Justice Sir Jeremy Cooke remarked:
It may be, that, as a litigant in person, albeit represented by a Part 2 Advocate on a direct access basis, the Claimants and Mr Garg have not fulfilled their disclosure obligations in accordance with the order I made for standard disclosure by the Claimant in the English sense.
This context informed the Court's decision to reserve judgment on the second limb of the preliminary issue, as the lack of full disclosure hampered the Court’s ability to determine the banks' true motivations.
What was the final disposition and the Court’s order regarding costs and future amendments?
The Court answered the first limb of the preliminary issue in the affirmative, confirming the banks required the closure of the facilities, but found the evidence insufficient to determine the second limb regarding the specific reason for the closure. Costs were reserved, with a strict procedural timeline for the parties to reach an agreement. The Court ordered:
If there is no agreement within 7 days on liability for costs or as to the quantum of the Claimants’ costs payable in the light of that indication: (a) The Defendant shall within 14 days thereafter file written submissions, not exceeding 8 pages, on the issue of liability for costs and why it should not pay the Claimants’ costs and submissions of not more than 4 pages on the quantum of the Claimant’s claimed costs in its Schedule.
Additionally, the Claimants were granted 21 days to apply to amend their Particulars of Claim or join additional parties.
What are the practical implications for practitioners regarding the use of preliminary issues in the DIFC?
This ruling serves as a cautionary tale for practitioners attempting to use preliminary issues as a "knockout blow" in complex commercial litigation. The Court expressed clear dissatisfaction with the attempt to shortcut the trial process when factual disputes remain unresolved. Practitioners must anticipate that the DIFC Court will be reluctant to resolve causation-heavy issues on a preliminary basis if the evidence is not exhaustive. Furthermore, the Court’s willingness to allow the Claimants to amend their pleadings suggests that the Court prefers to see the merits of a case fully ventilated rather than dismissed on procedural technicalities, provided the Claimants demonstrate a willingness to comply with disclosure obligations.
Where can I read the full judgment in Keshav Global Trading v ETG Commodities Holdings [2025] DIFC CFI 069?
The full judgment 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-holdings-limited-2
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | N/A |
Legislation referenced:
- Rules of the DIFC Courts (RDC)