Abu Dhabi Global Market – Disclosure And Inspection Of Documents And Tendering Of Evidence

Introduction

The Abu Dhabi Global Market ("ADGM") is a financial free zone established in October 2015 under Abu Dhabi Law No. 4 of 2013. It serves as an internationally recognized financial hub, offering a robust legal framework for businesses operating within its jurisdiction. The Abu Dhabi Global Market Courts ("ADGM Courts") were established in 2016. ADGM Courts provide a common law-based judicial system in a predominantly civil law region having jurisdiction over the disputes which arise between parties operating under ADGM. ADGM provides a specialized approach to resolving disputes by constituting a three-tier division, for civil and commercial disputes ("Civil and Commercial Division"), small claim disputes ("Small Claims Division") and employment disputes ("Employment Division"). The legal framework governing these divisions are set out under the Court Procedural Rules, 2016 ("CPR") and each division has its own set of Practice Directions ("PD"), governing their conduct.

In our previous article, we had explored the intricacies involved in conducting of case management conferences ("CMC"), and building upon that foundation, this article delves on two critical aspects of the process followed in ADGM Courts post the happening of the CMC, namely, disclosure and inspection of documents and tendering of evidence.

Disclosure and Inspection of Documents

Disclosure and inspection of documents are fundamental to the litigation process in ADGM Courts, ensuring that all relevant material is available to the disputing parties and the ADGM Courts to promote transparency. The rules governing disclosure are outlined in Part 13 of the CPR and provide a structured framework for the disclosure and inspection process, which varies depending on the category of the dispute and the division of the ADGM Courts.

1. Disclosure of Documents
   1. As per CPR 85, each party is obligated to disclose documents in accordance with a disclosure statement as set out in Form CFI 13. The court, as per its discretion, may make an order for such disclosure either prior to or after the commencement of the proceedings. Each party is, as a standard obligation, mandated to disclose all documents, which it intends to rely upon at trial. Notwithstanding the aforesaid general disclosure requirement, the court has the discretion to dispense with or limit the extent of standard disclosure which deems appropriate. As per PD 2.66, the timeline for compliance with the standard disclosure is typically set by the Commercial and Civil Division at the initial CMC. Furthermore, prior to the initial CMC, the parties are obligated to provide all information regarding the categories of electronic documents that are within their control. Additionally, PD 2.71 stipulates that all disclosed documents, irrespective of their original format, must be provided in an electronic format. If a party considers that the physical format of a file holds evidentiary value, such a claim is required to be raised by the party at the earliest opportunity.
      
      
   2. Additionally, the court may make an order for a further or specific disclosure of documents if it deems it necessary. In the Commercial and Civil Division, any party seeking a specific or further disclosure of documents is required to identify the particular documents of which the disclosure is sought. As such, the party required to make such a specific disclosure is obligated, as per PD 2.79, to conduct reasonable research of the document. As per PD 2.77, the application for such specific disclosure is to be made in Form CFI 12 and Form CFI 15, in the Civil and Commercial Division, and Form CFI 12C in the Small Claims Division and Employment Division.
      
      Furthermore, as per PD 2.85, the specific disclosure of documents is required to be in the form of a redfern schedule ("Redfern Schedule"), setting out the description of documents to be disclosed, supported by a disclosure statement in Form CFI 13. In case, any party withholds the specific disclosure of a particular document or a part of a document, such a party is required to mention a justifiable reason in the Redfern Schedule.
      
      
   3. Furthermore, as per CPR 88, if an application in Form CFI 12 and Form CFI 15 is made to the court, by a party demanding disclosure from a person who is not a party to the proceedings, such application has to be supported by cogent evidence and the court may make an order to the extent where such disclosure of documents is likely to support the applicants case or adversely affect the case of one or the other party to the proceedings.
      
      
2. Inspection of Documents
   1. As per CPR 90, a party has the right to inspect any document relied upon in the opposing party's statement of case, provided that such document has been relied upon by the disclosing party. However, if the disclosing party is desirous of withholding of any privileged documents, the disclosing party is required to provide proper justification and reasons for such non-disclosure. If a party inadvertently allows inspection of a privileged document, the inspecting party may only rely upon it with the court's permission.
      
      
   2. In the event, any disclosing party withholds a document from inspection, the requesting party is required to complete the relevant part of the Redfern Schedule and serve it on the disclosing party. Nonetheless, if the disclosing party still presses the claim of non-disclosure, the said party is required to modify the Redfern Schedule to that effect and serve the same through the e-courts platform for the determination of the court thereof.

Evidence in ADGM Courts

The ADGM Courts entail a comprehensive framework for the presentation and admissibility of evidence. To that extent, Part 14 of the CPR and PD 8 ensures that all evidence presented before the court is relevant. The following are the evidentiary forms permitted in the ADGM Courts:

1. Witness Statement: As per CPR 94 and CPR 97, a witness statement serves as the primary source of presenting oral testimony in written form. A party serving the witness statement is required to call the witness to give oral evidence at the trial stage, and as per CPR 101, the said witness may be cross-examined on the same. Any alteration of the witness statement is required to be initiated by the person making such statement or an authorised person thereof. Furthermore, any evidence used in conjunction with a witness statement is required to be verified by the witness. As per PD 8.1, a witness statement, which stands as evidence-in-chief, is required to be presented in accordance with Form CFI 15, and must be in the witness's own words followed by a statement of truth. In the event, a party is unable to procure a witness statement, the said party is required to make an application to the court for a witness summary, as per CPR 99. A witness summary then acts as the summary of the evidence that would have been included in the witness statement and is required to be served within the period that is applicable for a witness statement, as specified by the court.
   
   
2. Affidavit: As per CPR 104, evidence may be given by way of an affidavit, instead of or in addition to, a witness statement, on the direction of the court or an application of a party to that effect. However, the said affidavit is required to include a statement verifying the identity of the deponent and a signature of the individual before whom it is affirmed and any alteration thereof requires the affirmation from the deponent and the person before whom the affidavit was initially sworn. As per PD 8.5, an affidavit is required to be in accordance with Form CFI 14.
   
   
3. Notice to admit facts or part of the case and admission of such facts or part of the case: In the event a party is desirous of presenting certain facts which the other party may admit, they may serve a notice to that extent in Form CFI 47, as per CPR 109. The said notice is required to be sent to the other party no later than 21 (twenty- one) days before the trial, and any such admission may be amended or withdrawn upon approval by the court.
   
   
4. Notice to admit or produce documents: As per CPR 110, a party is deemed to admit the authenticity of any document which is disclosed to him unless he serves a notice for the document to be proved at the trial stage. Such notice is required to be served along with the witness statements, or within 7 (seven) days of the disclosure of the said document.
   
   
5. Hearsay evidence: In accordance with CPR 112-115, if a party intends to rely on hearsay evidence, which is either tendered by a person giving oral evidence or is based on the witness statement of a person not being called to give the oral evidence, the said party must file and serve a notice, as per Form CFI 17, to the other party identifying such hearsay evidence ("Hearsay Evidence Notice"). Further, the court may, upon application by the other party in Form CFI 12, permit the cross-examination of the person which had originally submitted his witness statement but is not called to give the oral evidence. Furthermore, as per CPR 115, a party may question the credibility of the person who makes such statement entailing the hearsay evidence and serve a notice to that extent in accordance with Form CFI 17 not more than 14 days after Hearsay Evidence Notice is served.
   
   
6. Other documentary evidence: The submission and admissibility of various forms of documents such as plans, photographs and models are regulated by CPR 116. If a party relies on documentary evidence that has not been included in witness statements, affidavits, or expert reports, it must file and serve a notice, as per Form CFI 17, no later than the date for serving witness statements or at least 21 (twenty-one) days before the hearing. Further, the other party is given the opportunity to inspect such document.
   
   
7. Expert Evidence: Expert evidence, governed by CPR 140-142, is crucial in cases requiring technical or professional expertise. Such expert evidence is required to be given in a written report, as per Form CFI 36, and is permitted to be used as evidence at the trial stage. However, any reliance on expert or expert report is not permitted without the explicit permission of the court.

The aforementioned structure of the admissibility and permissibility of evidence in the ADGM Courts ensures meticulous standards for witness statement, affidavits, admissions, hearsay evidence and expert reports. The same clearly establishes evidentiary credibility through precision and strict compliances with the prescribed formats.

Conclusion

The framework established by the ADGM Courts demonstrates a comprehensive approach to disclosure and inspection of documents and evidentiary matters. The prescribed mechanisms for such disclosures and inspection protocols coupled with various forms of permissible evidence ensure procedural streamlining. With such stringent requirements and prescribed forms, the ADGM Courts' maintain the highest standards of legal framework while facilitating transparency within its jurisdiction.

Originally published 24 March, 2025

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.