Salah Documents

3.⁠ Claimants draw the Court’s attention to the timing and circumstances in which this Application has been brought. The Defendants have sought to pursue a strike-out application at an advanced stage of proceedings, after the exchange of pleadings, disclosure of documents, and submission of witness evidence by the parties.

5. the Application constitutes an improper attempt to convert the limited strike-out jurisdiction under RDC 4.16 into a merits-based assessment of disputed facts and evidence. The Defendants’ complaints are, in substance, challenges to the weight, interpretation and credibility of evidence, rather than complaints that the Claimants’ Statement of Case discloses no legally recognisable claim.

B. THE LEGAL PRINCIPLES GOVERNING STRIKE-OUT APPLICATIONS UNDER RDC 4.16 I. The Strike-Out Jurisdiction is Exceptional and Subject to a High Threshold

7. RDC 4.16 provides: “The Court may strike out a statement of case if it appears to the Court: (1) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (2) that the statement of case is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (3) that there has been a failure to comply with a Rule, Practice Direction or Court order.”

8. The jurisdiction conferred by RDC 4.16 is a limited and exceptional jurisdiction. It is not intended to provide a mechanism for determining disputed questions of fact, assessing credibility, or conducting a summary trial of the substantive dispute.

9. The DIFC Courts have repeatedly recognised that strike-out applications should only succeed in clear cases where, even assuming the pleaded facts to be true, the claim is legally unsustainable.

10. In Nest Investments Holding Lebanon S.A.L. and Others v Deloitte & Touche (M.E.) and Another [2016] CFI 027, Justice Roger Giles explained the purpose of RDC 4.16 as follows: “RDC 4.16 is apt for applications where, even if all the pleaded grounds are accepted, the claims must fail.” 11. Accordingly, the question before the Court is not whether the Claimants’ case is likely to succeed at trial, nor whether the evidence currently available is sufficient to establish every aspect of the claim. The relevant question is whether the Claimants’ pleaded case is legally capable of succeeding.

13. Conversely, strike-out may only be appropriate where: a. the claim discloses no reasonable legal basis; b. the pleaded facts, even if accepted as true, cannot establish a viable claim; and/or c. the proceedings are plainly abusive or incapable of proper determination through the ordinary litigation process.

lII. Strike-Out is Not a Procedure for Determining Evidential Disputes 14. The Defendants’ Application fundamentally misconceives the nature of the strike-out jurisdiction by inviting the Court to determine whether certain documents are consistent with the Claimants’ case. 15. Such an exercise necessarily requires the Court to evaluate evidence, assess competing interpretations, and determine factual disputes. These are matters reserved for trial. 16. The purpose of a strike-out application is not to determine whether a party’s evidence is persuasive or whether the opposing party has identified apparent inconsistencies. Rather, the Court must determine whether the pleaded case is legally defective.

17.⁠ ⁠The distinction between a legally unsustainable claim and a claim which may ultimately fail at trial is critical. A claim does not become liable to strike-out merely because the opposing party disputes the factual allegations, relies upon contradictory evidence, or considers that certain documents undermine the pleaded case.

18.⁠ ⁠The Court of Appeal in Ul-Haq v Shah [2009] EWCA Civ 542 recognised that strikeout provisions are principally intended to enable the Court to dispose summarily of plainly defective claims or defences before the expense of trial is incurred.

19.⁠ ⁠The strike-out jurisdiction is therefore directed towards cases which are fundamentally defective from the outset, not cases where the parties have proceeded through disclosure and witness evidence and now disagree as to the evidential implications of the documents.

22. The Defendants’ complaints arise primarily from documents and evidence exchanged during the course of these proceedings. They do not identify any inherent defect in the Claimants’ Statement of Case.

23.⁠ ⁠The Claimants respectfully submit that the Defendants are effectively seeking to transform a strike-out application into a procedural mechanism for determining factual disputes arising from disclosure. 24. Such an approach is inconsistent with the purpose of RDC 4.16 and risks causing unnecessary delay, additional costs, and satellite litigation. 25. The DIFC Courts have previously cautioned against the use of strike-out applications as tactical devices designed to delay proceedings or obtain a premature determination of substantive issues.

RESPONSE TO THE DEFENDANTS’ APPLICATION

I. The Defendants’ Application Does Not Meet the Threshold for Strike-Out

27. Having regard to the principles set out above, the Defendants’ Application must fail. The Defendants do not contend that the Claimants’ Statement of Case discloses no legally recognisable claim. Rather, the Application is founded upon alleged inconsistencies between certain documents disclosed during the proceedings and aspects of the Claimants’ pleaded case.

31. Each of these matters is properly a matter for determination at trial following consideration of the complete evidential record. 32. The Defendants’ Application therefore improperly invites the Court to undertake an assessment of disputed facts and evidence, which falls outside the scope of the strikeout jurisdiction.

III. The Defendants’ Application Seeks a Determination of Evidential Issues Reserved for Trial 35. The Defendants’ submissions proceed on the assumption that the existence of documents which may appear, at first glance, inconsistent with certain aspects of the Claimants’ case necessarily demonstrates that the Claimants’ claim is false or unsustainable. 36. This assumption is incorrect. 37. The Claimants’ case is not founded upon isolated documents viewed independently. The Claimants rely upon the totality of the circumstances, including the factual background, the conduct of the parties, the surrounding documentary evidence, and the explanations provided by the witnesses.

38. Whether a particular document supports, contradicts, or has limited relevance to a particular allegation is a matter of evidential assessment. 39. Such assessment cannot properly be undertaken on a strike-out application, particularly where: a. the meaning and context of documents are disputed; b. the parties provide competing explanations regarding the circumstances in which documents were generated or disclosed; and c. witness credibility is likely to be relevant.

42.⁠ ⁠the mere existence of a bank statement within the disclosed documents conclusively establishes that the Claimants had knowledge of the relevant loan and financial arrangements. 44. The existence of a document within disclosure does not, without more, establish: a. when the document came into the possession or knowledge of the Claimants; b. whether the Claimants had actual access to or understanding of the contents of the document at the relevant time; c. whether the document was available to the Claimants before completion of the relevant transaction; or d. whether the Claimants were provided with sufficient information regarding the underlying circumstances.

46. The Defendants’ argument therefore improperly seeks to convert the existence of a document into a determination of knowledge and intent, without the necessary factual inquiry.

48. The Defendants contend that the RAK Bank Statement contradicts the Claimants’ position that they were prevented from accessing relevant banking information. 49. The Defendants’ submission again overlooks the distinction between: a. the existence of a document; and b. the circumstances surrounding the Claimants’ access to, knowledge of, and understanding of that document. 50. The Claimants’ case concerns, amongst other matters, whether relevant information was properly disclosed, whether the Claimants were placed in a position to understand the financial position of the transaction, and whether material facts were withheld..

53. The Defendants further rely upon EX-CL-19 and allege that: a. the document was incomplete; b. it was improperly described as “EX-CL-19” rather than “_chat”; c. it was selectively presented; and d. the alleged description amounted to intentional suppression or misrepresentation. 54. The Claimants deny that there was any deliberate mischaracterisation, concealment, or improper conduct. 55. Even assuming, without admission, that there was any discrepancy in the description or uploading of the document, such a matter would not satisfy the threshold for strikeout.

56.⁠ ⁠The Defendants’ allegation concerns an issue arising from the disclosure process, namely the description, categorisation, or presentation of a document. 57. Such matters are procedural or evidential issues. They do not demonstrate that the Claimants’ Statement of Case discloses no reasonable grounds or constitutes an abuse of process. 58. The Defendants are required to establish deliberate and material misconduct before the Court could properly consider any serious allegation of abuse of process. Mere assertion or disagreement regarding document description is insufficient.

60. The Defendants also rely upon an alleged missing page in Exhibit Ex-CI05_Agreement and contend that this constitutes intentional withholding of evidence. 61. The Claimants respectfully submit that this allegation is entirely unsupported by evidence. 62. A missing page within a document bundle does not, without further evidence, establish deliberate suppression, concealment, or misconduct. 63. The Defendants have identified no evidence demonstrating: a. that the Claimants intentionally removed the page; b. that the Claimants were aware of the omission; c. that the omission was material to the determination of the proceedings; or d. that the omission was undertaken for the purpose of misleading the Court.

64.⁠ ⁠In circumstances where the allegation concerns a factual dispute regarding document production, it cannot properly form the basis of a strike-out application. VIII. The Defendants’ Allegations Amount to a Premature Assessment of Credibility 65. The Defendants’ Application depends upon the Court accepting their interpretation of certain documents and rejecting the Claimants’ explanation of the surrounding circumstances.

70.⁠ ⁠The Defendants contend that:

a. the Claimants deliberately failed to disclose certain documents, including EX-CL19, which the Defendants allege was incorrectly described as “_chat”;

b. the Claimants failed to amend or “rectify” their Statement of Case following the Defendants’ disclosure of documents which the Defendants say undermined the Claimants’ pleaded case;

c. the Claimants selectively presented evidence, including in relation to the Share Transfer Agreement; and

d. the Claimants’ Statement of Truth is therefore unreliable and constitutes an abuse of process.

71.⁠ ⁠These allegations are unfounded, unsupported by evidence, and misconceived both factually and legally. 72. More importantly, these allegations do not engage the proper test under RDC 4.16. The Defendants seek to rely upon alleged deficiencies in the presentation or interpretation of evidence, rather than demonstrating that the Claimants’ Statement of Case itself is defective or abusive.

76. The Defendants have failed to identify any evidence capable of establishing that:

a. the Claimants intentionally withheld the document; b. the Claimants deliberately provided a false description of the document;

c. the description of the document was intended to mislead the Court; or

d. the alleged issue had any effect on the fairness or determination of the proceedings.

77. At its highest, the Defendants’ allegation concerns a possible discrepancy in document categorisation or description during the disclosure and bundle preparation process.

79.⁠ ⁠A finding of abuse of process requires more than an assertion that a party’s disclosure presentation was incomplete or imperfect. It requires clear evidence of conduct which undermines the integrity of the Court’s process. 80. No such evidence has been provided by the Defendants.

83. The disclosure of documents by an opposing party does not automatically require a claimant to amend its pleaded case. 86. The Defendants’ argument effectively seeks to impose an obligation upon the Claimants to amend their pleadings whenever the Defendants produce evidence with which the Defendants disagree. No such obligation exists under the RDC. 87. Further, the Defendants have not demonstrated any prejudice arising from the alleged failure to amend, nor have they identified any pleading deficiency which prevents the fair determination of the proceedings.

95. A serious allegation of dishonesty or abuse of process requires clear and cogent evidence. Mere disagreement with the Claimants’ pleaded case or interpretation of documents cannot satisfy that standard. 96. The Defendants have provided no evidence capable of establishing deliberate falsehood, dishonesty, or improper conduct by the Claimants. 97. The allegation therefore amounts to an unsupported attack on the Claimants’ credibility, which is inappropriate for determination on a strike-out application.

101. The Defendants’ Application therefore amounts to an invitation for the Court to conduct a mini-trial without the benefit of oral evidence, cross-examination, or full submissions. 102. Such an approach is contrary to the established principles governing strike-out applications and would deprive the Claimants of the opportunity to properly present their case. 103. The Court should accordingly decline the Defendants’ invitation to determine disputed evidential matters under RDC 4.16.

105. The Defendants have failed to demonstrate that: a. the Claimants’ Statement of Case discloses no reasonable grounds for bringing the claim; b. the Claimants’ case is legally unsustainable even if the pleaded facts are accepted; c. the proceedings constitute an abuse of process; or d. there has been any procedural failure warranting the exceptional remedy of strikeout. 106. Instead, the Defendants’ Application relies upon disputed factual matters, evidential interpretation, and allegations concerning credibility, all of which fall outside the proper scope of RDC 4.16.