The DIFC Court of First Instance has clarified the threshold for striking out pleadings due to non-disclosure, affirming that such measures are a last resort when alternative remedies, such as the drawing of adverse inferences, can preserve the fairness of the trial.
Why did Access Group DWC and Proex Partners seek to strike out the Defence of BLS International in CFI 091/2023?
The dispute arises from the Claimants’ contention that the Defendant, BLS International FZE, failed to comply with court-ordered disclosure obligations. The Claimants argued that this failure was so significant that it rendered a fair trial impossible, necessitating the extreme sanction of striking out the Defence. The court acknowledged that the Defendant was in significant breach of its disclosure duties and that relevant documentation remained withheld.
As H.E. Justice Lord Angus Glennie noted regarding the state of the evidence:
I am satisfied that there is a considerable amount of documentation in existence and in the control of the Defendants which may be relevant and has not been disclosed.
The Claimants sought to leverage this non-disclosure to secure a summary victory, arguing that the Defendant’s conduct constituted an abuse of process that undermined the integrity of the proceedings. The court, however, focused on whether the prejudice caused by the missing documents could be mitigated without resorting to the termination of the Defendant's right to defend the claim.
Which judge presided over the strike-out application in Access Group DWC v BLS International?
The application was heard by H.E. Justice Lord Angus Glennie in the DIFC Court of First Instance. The hearing took place over two days, on 1 and 2 September 2025, with the formal order issued on 3 September 2025.
What specific legal arguments did the Claimants and BLS International advance regarding the alleged non-disclosure?
The Claimants argued that the Defendant’s persistent failure to produce documents in its control amounted to an abuse of process, justifying a strike-out under RDC 4.16(3). They contended that the absence of these documents created a structural unfairness that could not be remedied by mere cost orders or procedural directions.
Conversely, the Defendant resisted the application, maintaining that while disclosure issues existed, they did not reach the threshold of preventing a fair trial. The Defendant’s position emphasized that striking out is a draconian measure that should be reserved for cases where no other procedural remedy is available to ensure justice. The court observed that the parties had not fully explored the potential of adverse inferences as a primary tool for managing the evidentiary gap, noting:
This was raised as part of an alternative application by the Claimant but it seems to me that it deserves more consideration than perhaps either party was willing to give it.
What was the precise doctrinal question the court had to answer regarding the intersection of non-disclosure and strike-out?
The court had to determine whether the Defendant’s failure to disclose relevant documents created a "substantial risk that a fair trial is not possible," and if so, whether striking out the Defence was the only proportionate response. The doctrinal challenge lay in balancing the court’s duty to punish procedural non-compliance against the overriding objective of ensuring a fair trial on the merits. The court had to decide if the "last resort" doctrine of strike-out could be bypassed in favor of the more nuanced, issue-by-issue application of adverse inferences.
How did Justice Lord Angus Glennie apply the "last resort" test to the strike-out application?
Justice Lord Angus Glennie emphasized that the court must not act hastily when faced with disclosure breaches. He clarified that strike-out is not intended as a punitive measure for the sake of punishment, but rather as a protective measure to prevent an unfair trial. The judge applied a two-stage test: first, determining if a fair trial is impossible, and second, if so, whether any less drastic alternative exists.
Regarding the necessity of the strike-out, the court held:
Strike out is intended to prevent an unfair trial taking place; so even when the Court is satisfied that there has been an abuse of process, strike out is a last resort and should only be considered if there were no other alternative that would achieve the result considered necessary, in other words that would achieve a fair trial.
The court concluded that the potential injustice could be mitigated by the court’s power to draw adverse inferences, thereby allowing the trial to proceed while protecting the Claimants' position.
Which specific RDC rules and legal principles were applied to the non-disclosure dispute?
The court primarily relied on RDC 4.16(3), which governs the power to strike out a statement of case, and RDC 28.61, which provides the court with the authority to draw adverse inferences from a party's failure to disclose documents. The court’s reasoning was anchored in the principle of proportionality, asserting that the court must identify a sanction that addresses the specific prejudice caused by the non-disclosure rather than imposing a blanket penalty.
The judge highlighted the court's proactive role in managing the evidentiary impact of missing documents:
Is it a case where the ability to draw adverse inferences, where appropriate, can protect the Claimant's position and enable a fair trial?
How did the court utilize the doctrine of adverse inferences to avoid striking out the Defence?
The court determined that the application of adverse inferences is a flexible, issue-by-issue tool that can be deployed during the trial. By refusing to strike out the Defence, Justice Lord Angus Glennie allowed the trial to proceed, with the caveat that the court would remain open to drawing inferences against the Defendant on specific points where documentation was missing.
The court’s reasoning for this approach was clear:
I am not persuaded at the moment that any potential injustice cannot be averted by the Court's willingness, in an appropriate case, to draw adverse inferences from the absence of documents which ought to have been produced.
This approach allows the court to calibrate the sanction to the specific prejudice, ensuring that the trial remains fair without depriving the Defendant of the opportunity to present its case on other, fully documented issues.
What was the final disposition of the application in Access Group DWC v BLS International?
The Court dismissed the Strike Out Application, ruling that the extreme measure was not yet warranted. However, it continued the Adverse Inferences Application, effectively keeping the threat of such inferences alive until the conclusion of the trial. The costs of the applications were reserved, meaning the court will decide which party bears the financial burden of these proceedings at a later date.
As the judge summarized:
For that reason, I refuse the Application to strike out the defence, but I make two important points to consider.
The court explicitly noted that the issue of adverse inferences could be re-argued at the end of the trial, once the full extent of the prejudice caused by the non-disclosure becomes clearer.
What are the wider implications for DIFC practitioners regarding document non-disclosure?
This order signals a shift toward a more granular, evidence-based approach to managing disclosure breaches. Practitioners should anticipate that the DIFC Courts will increasingly favor the use of adverse inferences over the "nuclear option" of striking out a pleading. Litigants must be prepared to argue the specific impact of missing documents on individual issues, as the court is now signaling a willingness to apply sanctions on an issue-by-issue basis rather than through broad procedural strikes. This reinforces the need for meticulous disclosure compliance, as the court will not hesitate to use the absence of documents as a weapon against the non-disclosing party during the final adjudication of the merits.
Where can I read the full judgment in Access Group DWC v BLS International [2025] DIFC CFI 091?
The full order can be accessed via the DIFC Courts website: https://www.difccourts.ae/rules-decisions/judgments-orders/court-first-instance/cfi-0912023-1-access-group-dwc-llc-2-proex-partners-limited-v-bls-international-fze-6
Legislation referenced:
- Rules of the DIFC Courts (RDC) 4.16(3)
- Rules of the DIFC Courts (RDC) 28.61