Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

See question 23.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

CPL article 94 provides that ‘the defendant may, if he claims that he has a right of recourse for the right claimed against him, against a person who is not a party to the proceedings, lodge a written application to the court setting out the nature of the claim and the grounds thereof, and apply that that person be joined as a party to the action’.

Consolidating proceedings

Can proceedings be consolidated or split?

Yes, proceedings are consolidated where multiple related claims and counterclaims have been commenced. Consolidation may occur by request of the parties or at the discretion of the court.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

The burden of proof is on the claimant to establish the legal and factual elements demonstrating that the defendant was indeed negligent, and any such allegations must be supported by evidence (see Dubai CC, 36/2010, 13 April 2010, paragraphs 2 and 3). The CFI (as the trial court) has ‘complete discretion over the understanding of the facts of the case and the assessment of the evidence and documents submitted to it, and in preferring that by which it is satisfied and discarding the rest, and it has absolute discretion over the assessment of the work of experts, as that is just one of the elements of proof in the case’ (ibid, at paragraph 1).

How does a court decide what judgments, remedies and orders it will issue?

The court will examine the facts and submissions from the parties and issue a judgment based on those filings and the applicable law. The court will award the damages that have been sought by the claimant. The court will usually not award damages or other remedies unless requested by the claimant.

Evidence

How is witness, documentary and expert evidence dealt with?

All submissions and evidence are provided in written form. UAE Federal Law No. 10 of 1992, as amended, concerning Evidence Law in Civil and Commercial Transactions (Evidence Law) articles 35 to 47 legislate with regard to witness testimony.

How does the court deal with large volumes of commercial or technical evidence?

In the vast majority of commercial litigation, the court will appoint a bipartisan expert to examine the underlying facts of the dispute. Evidence Law articles 69 to 92 legislate for the appointment of court experts. The court, at its discretion, may decide to appoint one or more experts from experts registered on the courts’ schedule. Alternatively, the parties may request the court to appoint one or more experts; the court will honour this request and make any appointments from the experts registered on the court’s schedule. In either of the above circumstances, the court must specify the expert’s duties and the measures permitted, the deadline for submitting the final expert’s report and the expert’s fees.

The court has the discretion to rely on the expert’s report in its judgment, require the expert to revisit his or her mandate or appoint a new expert.

In practice, the court almost always appoints an expert where the factual matrix of a case is disputed by the parties. This process is somewhat similar to discovery or disclosure in common law litigation. Experts are tasked with determining the factual matters of the case by meeting with the parties (usually the expert meets with each party separately) and demanding a variety of documentary evidence. Once satisfied, the expert will produce a final report. The court seeks to appoint experts with experience and background related to the case they are tasked with.

The court relies heavily on the expert’s final report. Therefore, it is important to ensure the expert receives all the information requested and is well informed of the facts of the case. Practically, plaintiffs must argue their case twice; legally before the judge, and factually before the expert.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Outside the framework of a bilateral or multilateral treaty, such a request would have to be applied by way of letters rogatory.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

All evidence can be questioned and disputed through memoranda submissions by parties. In addition, evidence is thoroughly tested through the court-appointed expert in meetings and submissions. As stated in question 35, Evidence Law articles 35 to 47 legislate with regard to witness testimony.

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

The length of proceedings greatly depends on the emirate as well as the court’s docket and the complexity of the case. Generally speaking, commercial litigations take from six to 18 months at the CFI stage.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

A typical defence tactic in the statement of defence is to deny most or even all documentary evidence provided by the claimant (contract, purchase orders, invoices, delivery receipts, etc). This defence strategy will then shift the evidential burden back to the claimant, requiring him or her to provide originals of all claim documents. This defence tactic is further complicated where the court will only provide adjournments of two to four weeks and may deny additional adjournments. This often delays proceedings while the claimant attempts to locate all originals; at worst, the claimant may be unable to locate primary original documents.

Practitioners, on behalf of claimants, are advised to ensure they have all originals of claim documents in anticipation of the above defence tactic. This will ensure that the claimant will be able to proceed and require a substantive defence from the defendant.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

As stated in question 15, third-party litigation funding is still in its infancy in the UAE.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

The Abu Dhabi and Dubai courts have made several technological improvements in the way litigation is handled. For example, filings of submissions are uploaded electronically.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Criminal matters take precedence over civil or regulatory matters. Any related civil proceedings will be stayed pending final resolution of the criminal matter. Moreover, criminal decisions (eg, a ruling by the Criminal Court) will guide the civil courts.

An interesting facet of UAE procedural law is the potential to have two parallel civil proceedings in different emirate courts. For example, it is possible to have the same dispute adjudicated at the same time before the Dubai courts and Abu Dhabi courts. Typically, both actions will proceed simultaneously to judgment and, where the final judgment is different between the courts, the FSC will hear the final appeal.