This order clarifies the scope of a party’s duty to produce documents under the Rules of the DIFC Courts (RDC), specifically addressing the requirement to retrieve records held by agents or located outside the jurisdiction.
What specific document production disputes arose between Salem Dwela and Damac Park Towers Company in CFI 083/2018?
The litigation concerns a real estate dispute between the Claimant, Salem Dwela, and the Defendant, Damac Park Towers Company. As part of the pre-trial disclosure process, both parties submitted Requests to Produce, leading to a series of objections regarding the existence, relevance, and accessibility of various documents. The court was tasked with adjudicating these requests to ensure that the evidentiary record was complete before the exchange of witness statements.
The dispute centered on eleven specific categories of documents requested by the Defendant. While several requests were resolved through the parties' own responses—either by confirming the documents had been provided or that they could not be located—others required judicial intervention. The court specifically addressed the Claimant’s failure to produce records held by his legal representatives and documents located at his residence in Italy. As noted in the court’s schedule of reasons:
The Requests to Produce and Responses have been referred to Justice Roger Giles. The determinations are as follows.
The dispute highlights the rigorous standard the DIFC Courts apply to the definition of "control" over documents, rejecting attempts by parties to evade production obligations based on the physical location of the records or the fact that they are held by third-party agents.
Which judge presided over the document disclosure order in Salem Dwela v Damac Park Towers Company?
Justice Roger Giles presided over this matter in the DIFC Court of First Instance. The order was issued on 31 August 2021, following a review of the parties' respective Requests to Produce and subsequent Objections filed in July 2021. The Registrar, Nour Hineidi, issued the order, which was transmitted to the parties via email on 24 August 2021, the date deemed effective for the purposes of the order.
What arguments did Salem Dwela advance to resist the production of documents held by his agents and those located in Italy?
The Claimant, Salem Dwela, attempted to resist the production of specific documents by arguing that they were not in his immediate physical possession. Regarding documents located at his residence in Italy, the Claimant argued that his presence in Dubai at the time of his response excused him from producing records stored abroad. Furthermore, the Claimant demonstrated a misunderstanding of the scope of the Defendant’s request regarding communications with Ms. Jeyran, effectively arguing that the requested documents were outside the scope of the litigation or not properly identified.
The Defendant, Damac Park Towers Company, countered these positions by asserting that the Claimant’s duty to disclose extends to all documents within his "control," regardless of their physical location or the identity of the person holding them. The Defendant successfully argued that the Claimant’s legal agents, DWF, held documents that were legally within the Claimant’s control and therefore subject to mandatory disclosure. The court ultimately rejected the Claimant’s narrow interpretation of his disclosure obligations, emphasizing that physical absence from a residence does not absolve a party of the duty to search for and retrieve relevant evidence.
What was the precise legal question Justice Roger Giles had to answer regarding the definition of "control" under the RDC?
The court had to determine whether a party’s obligation to produce documents under the RDC is limited to documents in their immediate physical possession or if it extends to documents held by professional agents and those located in foreign jurisdictions. The doctrinal issue was whether the Claimant could rely on the physical location of documents (Italy) or the fact that they were held by his legal representatives (DWF) to avoid the production requirements. The court was required to interpret the scope of "control" to ensure that the disclosure process was not frustrated by the strategic placement of documents or the use of third-party intermediaries.
How did Justice Roger Giles apply the test of "control" to the documents held by DWF and those in Italy?
Justice Roger Giles applied a strict interpretation of the duty to disclose, holding that a party must take active steps to retrieve documents even when they are not in their immediate custody. The judge emphasized that the Claimant’s duty includes searching for and obtaining documents from his residence in Italy and ensuring that documents held by his agents are produced.
Regarding the documents held by the Claimant's legal representatives, the court clarified that the agency relationship does not shield the documents from disclosure. The reasoning is captured in the following finding:
Document 5: The documents are within the Claimant’s control, being held by his agent DWF.
The court further clarified that the Claimant’s physical location in Dubai did not excuse him from the obligation to search for documents located in Italy. The judge mandated that the Claimant must make "all proper search" for these items, reinforcing the principle that the duty to disclose is an active, ongoing obligation that requires diligent effort from the party, rather than a passive reliance on current physical access.
Which specific RDC rules and procedural principles governed the document production order?
The order was governed by the Rules of the DIFC Courts (RDC), which mandate the disclosure of documents that are within a party’s "control." While the order does not cite specific RDC rule numbers, it operates under the established DIFC framework for document production, which mirrors international best practices for civil litigation. The court relied on the principle that "control" is a legal concept rather than a physical one.
The court also applied the principle of proportionality and relevance. For instance, regarding Document 3, the court determined that the documents were of "insufficient relevance" and therefore did not need to be produced. Similarly, for Document 10, the court applied a timing-based test, ruling that the documents should be provided as part of the Claimant’s evidence at a later stage rather than through the current disclosure process.
How did the court distinguish between documents requiring immediate production and those that were either irrelevant or premature?
The court utilized a tiered approach to the eleven requested categories. For documents that were already provided or could not be found after a diligent search, the court made no order. For documents deemed relevant and within the Claimant’s control, the court issued a mandatory production order.
The court’s treatment of the requests was as follows:
Documents 2, 4, 7, 8, 9 and 11 have already been or are provided, or cannot be found on search.
Regarding the power of attorney and communications with Ms. Jeyran (Document 6), the court clarified the scope of the request, noting that the Claimant had misunderstood the requirement. The court ordered that the Claimant must search for these documents, even if they were not currently in his possession, as they were deemed relevant to the issues in the case.
What was the final disposition of the document production requests in CFI 083/2018?
Justice Roger Giles granted the Defendant’s request in part. The court ordered the Claimant to produce Document 5 (held by his agent DWF) and to conduct a comprehensive search for Documents 1 and 6, which included searching his residence in Italy and locating the power of attorney. The court denied the production of other documents on the grounds that they were either already provided, could not be found, were of insufficient relevance, or were more appropriately introduced as evidence at a later stage of the proceedings. The Defendant was granted liberty to apply regarding Document 10 following the exchange of witness statements.
What are the wider implications for DIFC practitioners regarding document disclosure and agent-held records?
This case serves as a reminder that the DIFC Courts will not tolerate a narrow or evasive approach to document disclosure. Practitioners must advise clients that the duty to disclose extends to all documents within their "control," a term that the court interprets broadly to include records held by legal representatives, agents, and those stored in foreign jurisdictions.
Litigants must anticipate that a claim of "not in my possession" will be insufficient to avoid production if the documents are accessible through reasonable search efforts. The ruling reinforces the expectation that parties will perform a diligent, good-faith search for all relevant materials. Failure to do so, or relying on the physical location of documents as a shield, will likely result in a court order compelling production and potentially adverse costs consequences.
Where can I read the full judgment in Salem Dwela v Damac Park Towers Company [2021] DIFC CFI 083?
The full judgment is available on the official DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-083-2018-salem-dwela-v-damac-park-towers-company-limited-1
Cases referred to in this judgment:
| Case | Citation | How used |
|---|---|---|
| N/A | N/A | No external case law cited in the order. |
Legislation referenced:
- Rules of the DIFC Courts (RDC) - General disclosure and production provisions.