Claim No. CFI 106/2021
THE DUBAI INTERNATIONAL FINANCIAL CENTRE COURTS
IN THE COURT OF FIRST INSTANCE
BETWEEN
BAM HIGGS AND HILL LLC
Claimant
and
(1) AFFAN INNOVATIVE STRUCTURES LLC
(2) AMER AFFAN
Defendants
ORDER WITH REASONS OF JUSTICE MICHAEL BLACK KC
UPON the Defendants’ Application No. CFI-106-2021/3 dated 29 August 2024 seeking an order for documents to be admitted into evidence in these proceedings (the “Application”)
AND UPON the Claimant’s evidence in answer to the Application dated 11 September 2024
IT IS HEREBY ORDERED THAT:
1. The documents exhibited at Exhibit PAB-1 to the witness statement of Paul Alexander Blakeway dated 23 August 2024 shall be admitted into evidence in these proceedings subject to the below direction.
2. The Defendants’ Quantum Expert shall prepare and file a report on the documents underlying the labour histogram produced by Consultants House in relation to the Addendum to the Subcontract between the parties concluded on 17 December 2018 by no later than4pm (GST) on Wednesday, 25 September 2024failing which the Defendants shall be debarred from relying on those documents.
3. The Claimant’s Quantum Expert shall prepare and file a report in reply to the Defendants’ Quantum Expert’s report by no later than4pm (GST) on Tuesday, 1 October 2024.
4. As soon as possible thereafter the Quantum Experts shall prepare and file a further joint statement concerning the documents.
5. The Defendants shall pay the costs of and occasioned by the Application, including the Claimant’s costs of the report of the Claimant’s Quantum Expert and the further joint statement, to be assessed on the indemnity basis in default of agreement.
Issued by:
Hayley Norton
Assistant Registrar
Date of Issue: 23 September 2024
At: 8am
INTRODUCTION
1. On Friday 20 September 2024 there was a Pre-Trial Review in this case which is listed for trial commencing 21 October 2024. Leading Counsel appearing for each party attended the remote hearing and most procedural matters were, as one would expect, sensibly dealt with by agreement.
2. One matter remained outstanding. On 29 August 2024 the Defendants made an application to admit documents into evidence. It was agreed that I should deal with the application on the papers and need only provide brief reasons given the imminence of the trial.
THE APPLICATION
3. The application was supported by a witness statement dated 23 August 2024 made by Paul Alexander Blakeway of the legal representatives of the Defendants. There were two classes of document.
4. As to the first class, the documents underlay a labour histogram produced by Consultants House, a third party supplier engaged, as explained by the Second Defendant in his Fourth Witness Statement of 5 July 2024, in relation to the Addendum to the Subcontract between the parties concluded on 17 December 2018 and relied upon by the Defendants’ quantum expert, Mr Atherton, in his Supplementary Report of 5 July 2024 (“the quantum documents”). He was apparently supplied with the histogram in native Excel form but without the source data for the calculations appearing within each cell of the spreadsheet. He undertook to advise the Court accordingly when he received the source data.
5. As to the second class, there is a single document, a drawing review sheet dated 17 July 2016, of which it is said the relevance only became apparent because of the ongoing discussions between the technical experts (“the liability document”).
6. On 11 September 2024 the Claimant served evidence supporting its opposition to the application. This comprised witness statements from Terrick Lee McCallum of the Claimant’s legal representatives and from Michael Kenyon, the Claimant's quantum expert.
7. There does not seem to be any serious opposition to the liability document being admitted into evidence – it is not mentioned by Mr McCallum.
8. The substantive part of Mr McCallum’s witness statement runs to 14 pages. 9 of those pages are devoted to a diatribe railing against the Defendants’“repeated abuse of the process and procedures”. Lord Marks KC for the Claimant suggested that the background was relevant to my consideration whether or not to admit the document, but it is reasonably apparent to me that it has rather more to do with costs. The thrust of the Claimant’s opposition is summarised at paragraph 47(b) of the witness statement, namely that the Defendants have offered no explanation as to why, at the time of procuring the labour histogram from Consultants House in May 2023, they failed to collate the alleged underlying documentation at that stage, nor why, having full knowledge of the Counterclaim it was advancing, the First Defendant waited until approximately 6 weeks before the Hearing to produce these documents.
9. For his part Mr Kenyon said that it would take at least three to four business days to analyse the quantum documents (and/or a further report from Mr Atherton) and to produce a draft fourth quantum report setting out his opinions.
10. On 18 September 2024 the Defendants wrote to the Court. They noted that Mr Kenyon had not stated that the quantum documents were irrelevant to the matters in dispute. They said that if Mr Kenyon believed that he only required a supplemental report from Mr Atherton in order to proceed with his review, the Defendants were prepared to agree to such terms.
11. The Defendants confirmed that they did not intend to submit further evidence in support of the application.
12. The application was then placed before me – one day before the Pre-Trial Review.
DISCUSSION
13. The relevance of the quantum documents does not appear to be in dispute.
14. It is wholly unsatisfactory that they are sought to be introduced at such a late stage in the proceedings. There is no explanation as to why this is the case. Either they were deliberately withheld, or the late disclosure was due to error. There is no evidence of the former and therefore it must be the latter.
15. Not without some reluctance, but given the relevance of the documents and an unwillingness to visit the possible error of advisors on their clients, I shall admit the quantum documents into evidence. However, the admission will be on strict terms.
16. According to Mr Blakeway Mr Atherton is of the view that an experienced quantum expert will be able to review the documents within two to three working days. I will therefore allow him that time within which to provide a further report, failing which the Defendants will be debarred from relying on the documents.
17. I will allow Mr Kenyon the four business days he requested to analyse the documents and produce a fourth quantum report setting out his opinions.
18. The quantum experts should then produce a further joint statement concerning the documents as soon as possible thereafter.
19. The Defendants must pay the costs of and occasioned by the application in any event. For the avoidance of doubt that includes the costs of the further report of Mr Kenyon and of the further joint statement. Given that the Defendants have failed to provide any explanation of their failure to produce the documents at the appropriate time, the costs shall be assessed on the indemnity basis in default of agreement.
DISPOSITION
20. The documents exhibited at Exhibit PAB-1 to the witness statement of Paul Alexander Blakeway dated 23 August 2024 shall be admitted into evidence in these proceedings subject to the following direction.
21. The Defendants’ Quantum Expert shall prepare and file a report on the documents underlying the labour histogram produced by Consultants House in relation to the Addendum to the Subcontract between the parties concluded on 17 December 2018 by no later than 4pm (GST) on Wednesday, 25 September 2024 failing which the Defendants shall be debarred from relying on those documents.
22. The Claimant’s Quantum Expert shall prepare and file a report in reply to the Defendants’ Quantum Expert’s report by 4pm (GST) on Tuesday, 1 October 2024.
23. As soon as possible thereafter the Quantum Experts shall prepare and file a further joint statement concerning the documents.
24. The Defendants shall pay the costs of and occasioned by the application, including the Claimants costs of the report of the Claimant’s Quantum Expert and the further joint statement, to be assessed on the indemnity basis in default of agreement.